Appeal No. 94-4497
Application 07/913,782
While the prior art relied upon by the examiner discusses
natural vanilla extract, it is not directed to the claimed
cultured vanilla cell extract having a composition different
from natural vanilla extract, i.e., because the starting
material (vanilla bean) and the extraction procedure (using
alcohol) disclosed in the applied prior art differs from the
starting material (a secreted product from a vanilla plant
cell culture) and the extraction procedure (contacting culture
medium with an adsorbent) of the present invention.
Accordingly, we find no basis for the examiner’s conclusion
that the prior art composition “mimics” the claimed subject
matter. See Figures 3A and 3B. In addition, the examiner has
failed to provide any analysis of the prior art references
which would have led a person having ordinary skill in the art
to the claimed subject matter, i.e. a composition wherein the
amounts of the first and second sets of vanilla flavor
components present in the extract are different from that of a
natural vanilla extract. 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).
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