Appeal No. 1997-2565
Application 08/382,588
potassium sorbate are by weight or by volume with respect to the beverage or the
preservative. In light of the specification at p. 5, lines 7-10, and at p. 6, lines 1-6, it
appears that appellant intended the claims to read as if -- , by weight of the beverage, --
7
was inserted after “comprises”. Clarification is needed.
Claims 4 and 8 are unclear as to whether the percentages and portions,
respectively, are by volume or by weight. Again, clarification is needed.
Claim 7 recites a “frozen concentrate accordance with claim 6, further comprising in
combination a bottle …”, but it is unclear what physical relationship the bottle of claim 7
has to the composition of claim 6. Claim 7 may be construed as requiring the combination
of the frozen concentrate of claim 6 and the bottle as part of a kit. See p. 4, para. 2, of the
specification. Alternatively, Claim 7 may be construed as simply requiring the presence of
the frozen concentrate and bottle in the same store in an unassociated manner.
Clarification is needed on this point as well.
CONCLUSION
The rejection of claims 1-12 is reversed.
No issue under 35 U.S.C. ' 112, second paragraph, is seen for the use of the term “comprising”7
in claims 2 and 5, even though they depend from claims 1 and 4, respectively, which have the “consisting
essentially of” language. Claims 2 and 5 further limit the invention by providing that the preservative – not
the beverage – comprises the recited amounts of sodium benzoate and potassium sorbate. The beverage
still consists essentially of the components recited in the independent claims.
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