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
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