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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