Appeal No. 1997-2565
Application 08/382,588
the sugar and mint leaves from the Tarr reference. As the appellant correctly notes, the
Tarr process has no intermediate step in which only tomato juice and orange juice are
present without the sugar or mint leaves. Sugar and mint also are strong flavorings, and no
suggestion is seen in Tarr for removing those flavorings. To the contrary, Tarr designated
her drink as “Minted Tomorange-Ade” (emphasis added). None of the other prior art of
record, either alone or in combination, suggests a beverage consisting essentially of
tomato and orange juices from concentrates. Only through impermissible hindsight,
therefore, would one skilled in the art have chosen the tomato and orange juices taught by
Tarr, while at the same time excluding the sugar and mint leaves also taught by that
reference, to arrive at the invention consisting essentially of the components presently
claimed.
NEW GROUND OF REJECTION UNDER 37 CFR 1.196(B)
Pursuant to the provisions of 37 CFR 1.196(b), we make the following new grounds
of rejection.
Claims 2, 4, 5, 7, and 8 are rejected under 35 USC 112, second paragraph, as
being indefinite.
Claims 2 and 5 are unclear as to whether the percentages of sodium benzoate and
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