Appeal No. 1997-2565
Application 08/382,588
characteristics of a claimed composition. See In re Janakirama-Rao, 317 F.2d 951, 954,
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137 USPQ 893, 895, 896 (CCPA 1963). We therefore need to determine the “basic and
novel characteristics” of the claimed invention. In so doing, the claims should be analyzed
to determine their plain meaning in light of the specification. See In re Marosi, 710 F.2d
799, 803, 218 USPQ 289, 291-293 (C.A.F.C. 1983). In the instant case, the beverage is
described as having a “distinctive taste” with “novel flavor and taste characteristics” (p. 1,
para. 1) without added sugar or other flavoring (p. 2, para. 1). The appellant indicates that
the beverage is to be distinguished from other commercially available products which are
combinations of high fructose, corn syrup, artificial flavorings, and water, with only minimum
amounts of fruit and vegetable juices in their pure form (p. 1, para. 2, through p. 3, para. 1).
As explained by the appellant in the paragraph bridging pp. 3 and 4 of his Reply Brief, the
“beverage, as claimed, is essentially limited to orange juice and tomato juice made from
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concentrates and has a mild, but pleasant and distinct taste.” In our view, when the claims
on appeal are read in light of the specification, the phrase “consisting essentially of” in the
present claims excludes the sugar and mint leaves taught by Tarr.
The examiner has not provided any teaching or suggestion in the prior art to omit
See also, PPG Industries Inc. v. Guardian Industries Corp., 156 F.3d 1351, 1354, 48 USPQ2d 1351, 1353-13545
(C.A.F.C. 1998), wherein the Federal Circuit noted that by using the term “consisting essentially of” the claim drafter
signals that the invention necessarily includes the listed ingredients and is open to unlisted ingredients that do not
materially affect the basic and novel properties of the invention.
At least some of the claims also provide for one or more of ascorbic acid, preservatives, soda water, and6
mineral water.
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