Appeal No. 96-2149
Application 08/135,207
contain "comprising" language, the claims are not open to steps such as heating and
treating with activated carbon which militate against producing "an isoflavone enriched
protein isolate."
As a final point, this application is remanded to the examiner to consider the
rejection of claims 7-14 over the admitted state of the prior art found in appellants'
specification and Iwamura under 35 U.S.C. § 103. Since appellants' specification
acknowledges, and Iwamura discloses, that it was known in the art that isoflavones have
medicinal utility, such as inhibiting human cancer cells, the examiner should consider the
obviousness of employing a mild washing step after isolating the precipitated protein
material in order to minimize the removal of the desirable isoflavones from the protein
precipitate (page 6 of specification, last paragraph). In our view it would been a matter of
obviousness for one of ordinary skill in the art to either utilize the isoflavone enriched
protein isolate, per se or perform the resin adsorption of Iwamura to further isolate the
isoflavones.
In conclusion, based on the foregoing, the examiner's decision rejecting the
appealed claims is affirmed in part. In addition, the application is remanded to the
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