Appeal No. 96-2149
Application 08/135,207
protein isolate, it can not be reasonably concluded that the process of Walsh
inherently produces the claimed "isoflavone enriched protein isolate." Although the
examiner recognizes that the Walsh process includes a heating step not performed by
appellants, the examiner contradictively states "the protein isolate of Walsh is produced by
the same process steps under the same conditions as are claimed by Appellants;
Appellants have pointed to no differences between the prior art and the claimed process
steps and conditions." (page 10 of answer). On the contrary, appellants devote the
paragraph bridging pages 12 and 13 of the brief to the differences between the Walsh
process and the claimed process.
We will also not sustain the examiner's § 102 and § 103 rejections based on Carey.
Again, the processes of Carey and appellants are not essentially the same. The process
of Carey specifically employs activated carbon to deflavorize the protein material to
produce a protein isolate that lacks the characteristic "beany" flavor of soy beans. While
appreciating that Carey treats the protein isolate with activated carbon, the examiner
erroneously states "[b]ecause the reactants and process steps are the
same, Carey will produce an isoflavone enriched vegetable protein isolate to the same
extent claimed by Applicants." (page 5 of answer). Also, although the appealed claims
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