Appeal No. 95-0334
Application 08/002,513
intermediates are formed during appellants' reaction of GA and
acid. In the absence of any teaching or suggestion in the
prior art that similar, intermediate ester compounds are
formed during the reaction of GA and acid, there would have
been no motivation for one of ordinary skill in the art to
incorporate acetone in the reaction medium. Furthermore, as
argued by appellants, Japanese '217 adds a C -C aliphatic
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alcohol or C -C alicyclic alcohol to the reaction medium, and
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the present claim language "consisting essentially of"
precludes the presence of such alcohols in the claimed
reaction medium. We note that the examiner has not rebutted
appellants' argument pertaining to the "consisting essentially
of" language.
In our view, the examiner's underlying rationale for the
conclusion of obviousness is more an explanation, with the
benefit of appellants' specification disclosure, why
appellants' process achieves an improved yield of L-ascorbic
acid, than why it would have been obvious for one of ordinary
skill in the art to employ an aliphatic ketone in the starting
reaction medium of the claimed process. Manifestly, this
approach necessitates the use of impermissible hindsight.
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