Appeal No. 1996-2214
Application No. 08/208,123
All the claims under appeal require process steps of “controlling the oxygen
concentration to correspond to 15 to 30% of air oxygen saturation of said medium” and of
“obtaining a fermentation medium containing the carbon source in a concentration
corresponding to 200 to 400 g/l of glucose.” The claims also require a specific ratio of
carbon source to nitrogen. These claim limitations and their use in combination, are not
suggested by Takayama. The examiner does not provide reasons, motivation or a
suggestion for modifying the batch process of Takayama or for selecting the specific
claimed process requirements, or their resulting citric acid production advantages.
To supply these omissions in the teachings of the applied prior art, the examiner
made determinations that these differences would have been obvious to an artisan who
would alter one or both variables in order to optimize the production of citrate and would be
a matter of routine experimentation. Examiner’s Answer, second numbered page 3.
However, what is missing from the examiner’s analysis is evidentiary support that would
have led an artisan to select variables outside or in addition to those set forth in Takayama
to arrive at the claimed invention. In our view, the only reason or suggestion for modifying
the batch process of Takayama for producing citric acid as set forth in the manner
proposed by the examiner to meet the above-noted claim limitation, stems from hindsight
knowledge derived from the appellants' own disclosure. The use of such hindsight
knowledge to support an obviousness rejection under 35 U.S.C. § 103 is, of course,
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