Appeal No. 94-4307
Application 07/919,267
would have been anticipated by the reference relied upon for the
rejection. Accordingly, the rejection of claims 1-12 under 35
U.S.C. § 102(b) is reversed.
Rejection for Obviousness
In the alternative, the examiner rejected all of the
appealed claims under 35 U.S.C. § 103 as being unpatentable over
Japanese Laid Open Application 2-174649. For substantially the
same reasons as given above, this rejection too must fail. The
examiner has failed to present evidence or any analysis of the
prior art which would have led a skilled artisan to the claimed
subject matter, i.e. to add chitosan or hydrolyzed chitosan or a
mixture thereof to a solution containing thaumatin and a
substance that decreases the sweetness of thaumatin. See In re
Brouwer, 77 F.3d 422, 425, 37 USPQ2d 1663, 1666 (Fed. Cir. 1996);
In re Ochiai, 71 F.3d 1565, 1570, 37 USPQ2d 1127, 1131 (Fed. Cir.
1995). According to appellants, the sweetness of thaumatin
decreases when an aqueous solution of thaumatin contains coloring
agents or polysaccharides (specification, paragraph bridging
pages 1 and 2). They have discovered that adding chitosan or
hydrolyzed chitosan or a mixture thereof to such a solution will
effectively prevent the decrease in sweetness of thaumatin. The
problem and appellants’ solution of the problem is not addressed
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