Appeal No. 1997-2565
Application 08/382,588
½ 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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