Ex parte JOHNSON - Page 11

              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, --                    
              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.                                                                 

                      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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