Appeal No. 96-2149
Application 08/135,207
1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In such cases the burden of proof
on the applicant is the same whether the rejection is based on § 102 or § 103. In the
present case, appellants have not factually challenged the examiner's determination that
the process disclosed by Iwamura is essentially the same as the claimed process, and our
review supports the examiner's factual findings. Although Iwamura does not expressly
disclose that the precipitated protein material is enriched with isoflavone, appellants have
not refuted that this would be the case since both appellants and Iwamura perform the
same process steps. Furthermore, appealed claim 7 does not preclude contacting the
isoflavone enriched protein isolate with the adsorbent resin disclosed by Iwamura and,
also, it follows logically that since the adsorbent resin of Iwamura adsorbs the isoflavone
from the protein isolate, the protein isolate before contact with the adsorbent resin must be
enriched with isoflavone. Regarding claims 2, 3, 5 and 6, we agree with the examiner that
it would have been prima facie obvious to determine the optimum values for result effective
variables, such as pH and ratio of extractant to vegetable protein material.
We will not sustain the examiner's § 102 rejection of claims 1-6 and 15 over
Walsh. Since Walsh employs a heating step in the extraction process to produce a bland
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