Appeal No. 94-4307
Application 07/919,267
The limitation in question is a negative limitation wherein
appellants’ claim 10 is open to the inclusion of compounds other
than ascorbic acid. Appellants’ specification does not
explicitly state that ascorbic acid is excluded from the
thaumatin solution comprising the claimed invention and it fails
to provide any explanation as to why only ascorbic acid should be
excluded from the thaumatin solution as opposed to other
compounds which may have similar chemical properties as ascorbic
acid. The disclosure upon which the appellants rely on for
support of the limitation is limited only to what is known in the
prior art. The prior art did not disclose or suggest a reason
for excluding ascorbic acid from a thaumatin solution containing
a coloring agent or polysaccharide. For the reasons given above,
we find that appellants’ specification, at the time the
application was filed, would not have conveyed to a person having
ordinary skill in the art that ascorbic acid is substantially
absent from appellants’ thaumatin solution. Accordingly, the
examiner’s rejection of claim 10 under 35 U.S.C. § 112, first
paragraph, is affirmed.
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