Ex parte JOHNSON - Page 3




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


              consumption” consisting essentially of roughly equal amounts of orange juice from                              
                                                                  1                                                          
              concentrate and tomato juice from concentrate.   The independent claims are 1, 4, 6, 8,                        
              and 12.  Claims 1, 4, and 6 require 60-1,200 mg/L of ascorbic acid (Vitamin C) and                             
                                                                                                 2                           
              require “sufficient food additive preservative substance to prevent spoilage”.   Claim 8                       
              involves a method which consists essentially of mixing approximately equal portions of                         
              orange juice concentrate and tomato juice concentrate with water in the amount of                              
              approximately three times the amount of the concentrates, without the ascorbic acid or                         
              preservative required in the other independent claims.  Claim 12 also requires “sufficient                     
                                                       3                                                                     
              food preservative to prevent spoilage”  but not ascorbic acid (Vitamin C).                                     
              The prior art                                                                                                  
                      Tarr is cited for its description of a beverage based on the combination of orange                     
              and tomato juices.  The relevant portion of Tarr is the following recipe from p. 143:                          
                      MINTED TOMORANGE-ADE                                                                                   
                      YIELD:  1 QUART                                                                                        
                      2  Cups tomato juice                                                                                   
                       Cup granulated sugar                                                                                 
                      2  Cups mint leaves                                                                                    
                      2  Cups orange juice                                                                                   

                      The amounts of each are about 40-60 vol.% (claim 1), about 40-60% (claim 4), about equal … by1                                                                                                     
              volume (claim 6), approximately equal (claim 8), or about/approximately 50 vol.% (claims 3 and 12).            
                      Claim 1 requires that the food preservative be sufficient “to prevent spoilage of the beverage after2                                                                                                     
              it has been sterilized while in sealed sterile containers”, whereas claim 6 requires the food preservative be  
              sufficient “to prevent spoilage of the mixture while shipped, marketed and stored in a frozen condition.”      
              Claims 4 and 6 require “about” 60-1,200 mg/L of ascorbic acid.                                                 
                      Claim 12 requires that the food preservative be sufficient “to prevent spoilage of the beverage after3                                                                                                     
              it has been sterilized while in sealed sterile containers”                                                     
                                                             -3-                                                             





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