Ex parte JOHNSON - Page 5

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

                      invention was made to use the known ingredients as disclosed above in the                              
                      composition and process of Tarr to make a shelf stable product…. As in In re Levin,                    
                      the ingredients are used for their known functions, and nothing new or unexpected is                   
                      seen in varying the amounts of ingredients.                                                            
              The examiner elaborates at p. 5 of the same Answer:                                                            
                             Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein,                   
                      which are considered in point in the fact situation of the instant case, and wherein                   
                      the Court stated on page 234 as follows:                                                               
                             This court has taken the position that new recipes or formulas for                              
                      cooking food which involve the addition or elimination of common                                       
                      ingredients, or for treating them in ways which differ from the former practice,                       
                      do not amount to invention, merely because it is not disclosed that, in the                            
                      constantly developing art of preparing food, no one else ever did the                                  
                      particular thing upon which the applicant asserts his right to a patent.  In all                       
                      such cases, there is nothing patentable unless the applicant by a proper                               
                      showing further establishes a coaction or cooperative relationship between                             
                      the selected ingredients which produces a new, unexpected, and useful                                  
                      function.  In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F. (2d) 974,                          
                      5 U.S.P.Q 267; In re Mason et al., 33 C.C.P.A (Patents) 1144,156 F. (2d)                               
                      189, 70 U.S.P.Q 221.                                                                                   
              The examiner further acknowledges at p.6 of her Answer that the independent claims are further                 
              limited by “consisting essentially of” language but maintains that “even by limiting the particular            
              ingredients, the claims are seen to be a recipe as in In re Levin, and no coaction of ingredients is           
              seen to make a new product.”                                                                                   

                      The appellant raises two arguments.  First, the Examiner improperly applied In re Levin as             


Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  Next 

Last modified: November 3, 2007