Ex parte JOHNSON - Page 4




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


                       Cup lime juice                                                                                       
                      Club soda                                                                                              
                      Directions:  In a medium-size saucepan, bring tomato juice to a boil, then add sugar                   
                      and mint leaves.  Remove from heat and allow mixture to cool.  Stir in orange and                      
                      lime juices.  Divide among ice-filled highball glasses and add soda to fill.                           
                      Both Nagy and Hawley are cited for their teachings concerning food preservatives.                      
              Nagy shows that sodium benzoate is a known preservative for citrus juices, including                           
              orange juices.  Hawley teaches that potassium sorbate is used as “[b]acteriostat and                           
              preservative in meats, sausage casings, wines, etc.”                                                           
              The rejection and issues on appeal                                                                             
                      The Examiner rejected claims 1-12 under 35 USC  103 as being unpatentable                             
              over Tarr in view of Tagy and Hawley.  The Examiner states at p. 4-6 of her Answer mailed                      
              February 19, 1997 that Tarr teaches a composition with equal parts of tomato juice and                         
              orange juice but notes that Tarr does not teach the use of juice concentrate, ascorbic acid,                   
              and preservative substances.  Nevertheless, the Examiner finds that juices of differing                        
              concentrations are extremely well known and that nothing “new” is seen in the addition of                      
              ascorbic acid (Vitamin C).  Since Nagy and Hawley purportedly show that the                                    
              preservatives claimed are well known, the examiner holds that the particular amounts of                        
              these additives required by the claims are within the skill of the ordinary worker.                            
                      The examiner concludes at p. 4 of her February 19, 1997 Answer:                                        
                      (I)t would have been obvious to one of ordinary skill in the art at the time the                       

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