Appeal No. 95-1373
Application No. 08/011,074
To meet the claim requirement for a basic substance in
the chewing gum, the examiner relies upon Kehoe's disclosure
that calcium carbonate can be used as a filler in the chewable
article (column 8, line 27). The examiner points out that
although Kehoe does not expressly teach the combination of
aspirin and calcium carbonate in chewing gum, and that such
substances react in the presence of saliva to form a salt,
"the prior art need not teach Appellant's reason for adding a
material and a mere difference in reason does not provide
patentable distinction" (page 6 of Answer).
The flaw in the examiner's reasoning is that Kehoe,
considered in its entirety, does not teach or suggest the
addition of calcium carbonate as a filler to a chewing gum
containing aspirin. At column 4, lines 37 et seq., Kehoe
discloses that a dusting agent may be added to the chewable
article which is chemically inert to the active ingredient.
Consequently, when selecting a dusting agent for a chewable
article containing aspirin, we agree with appellants that one
of ordinary skill in the art would not have chosen calcium
carbonate, a material that is hardly inert to aspirin.
Although Kehoe teaches a combination of citric acid and
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