Appeal No. 95-4321
Application 07/976,241
which is missing from the disclosure of Beadle, the examiner has relied on Fiehring as
disclosing the use of yeasts, such as Saccharomyces sp., to remove lactose and the
cleavage products, galactose and glucose, from milk. (Answer, paragraph bridging pages
5-6). Hartley is said to teach that "yeasts such as Saccharomyces cerevisiae can be useful
for the preparation of sugars from whey and the fermentation of ethanol from lactose.
(Answer, page 6). Barker is said to teach "a process for the production of tagatose via the
conversion of galactose in the presence of L-arabinose isomerase---." (Answer, page 6).
The examiner then concludes (Answer, page 7):
It would have been obvious to modify the conventional method steps and
reaction conditions taught by the Beadle et al patent to optimize the
production of tagatose in view of the Fiehring et al (Abstract) which teaches
the conventional use of yeasts, viz., Saccharomyces sp to remove lactose
and the cleavage products, galactose- and glucose-cultures, in a process for
the preparation of milk free carbohydrates and in view of the Harley
(Abstract) which teaches that the same species of yeasts can be used for
the preparation of sugars from whey and the fermentation of ethanol from
lactose. Also, it would have been obvious to modify the method steps and
reaction conditions taught by the Beadle et al. reference to optimize
production of the sugar tagatose in view of the Barker et al. reference which
teaches that the use of metal ions and L-arabinose isomerase enzyme
derived from microorganisms can be used in a process for production of the
sugar tagatose.
The examiner bears the initial burden of presenting a prima facie case of
obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992). On the record before us, the examiner has failed to establish a prima
facie case of unpatentability of the claimed subject matter. Fiehring and Hartley do not
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