Appeal No. 97-2502
Application 08/358,353
Dimler does not even find it necessary to state the reason for
degassing the milk-based infant formula described in the patent.
Dimler, col. 2, lines 56-57.
As to the differences in the amount of milk and cereal
product present in the claimed and prior art compositions, we
find that Stevens discloses that the proportions of the
referenced constituents are determined by consumer preference.
Stevens, col. 1, lines 31-36. Depending on the desired
consistency, one of ordinary skill in the art would recognize
when to add more or less of the claimed ingredients. Thus, in
our opinion, the concentration of the ingredients in a milk pap
is merely a result effective variable, the optimization of which
is “ordinarily within the skill of the art.” In re Boesch, 617
F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980). Accordingly, we
conclude that the composition described in claim 31 would have
been obvious to those of ordinary skill in the art at the time
the application was filed.
As to claim 30, we find that the examiner has correctly
characterized the claim as being in a product-by-process format.
Answer, p. 5, para. 1. It is well established that with respect
to product-by-process claims, patentability depends on the
product and not on the process by which it is made. In re
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