Ex parte JOHNSON - Page 2




              Appeal No. 1997-2565                                                                                           
              Application 08/382,588                                                                                         


                      Claim 1 is illustrative of the subject matter on appeal and                                            
              reads as follows:                                                                                              
                      1.     A beverage for human consumption consisting essentially of about 40% to                         
              60% by volume of orange juice made from concentrate, about 40% to 60% by volume of                             
              tomato juice made from concentrate, 60 to 1,200 milligrams of ascorbic acid per liter of                       
              the beverage, and sufficient food additive preservative substances to prevent spoilage of                      
              the beverage after it has been sterilize[d] while in seal[ed] sterile containers.                              
                      The references relied upon by the examiner are:                                                        
              Tarr, Y. V., “The Tomato Book”, Random House, Inc., NY, pp. 142-143 (March 1977).                              
              Nagy et al., “Citrus Science and Technology”, Vol. 2, Avi Publishing Co., Westport, CN, p.                     
              246 (1977).                                                                                                    
                                                                         th                                                  
              Hawley, G., “The Condensed Chemical Dictionary”, 10  ed., Van Norstrand Reinhold Co.,                          
              NY, p. 854 (1984).                                                                                             
                      Claims 1-12 stand rejected under 35 USC  103(a).  As evidence of obviousness,                         
              the examiner relies on Tarr, Nagy, and Hawley.  We reverse the rejection and institute new                     
              grounds of rejection under 37 CFR  1.196(b).                                                                  
                                                      DISCUSSION                                                             
              The claims                                                                                                     
                      Our analysis begins with the claims at issue. Claims 1-5 and 12 are directed to a                      
              beverage, claims 6 and 7 to a frozen concentrate, and claims 8-11 to a method of                               
              producing a beverage.  All of the claims involve “a beverage suitable for human                                




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