Appeal no. 1997-3953
Application 08/392,615
claimed medium in the ratio of glucose to fructose, and/or the overall concentration of
glucose plus fructose.
In the statement of the rejection, the examiner asserts that “[t]he ratio of fructose to
glucose increases during the ripening of grapes such that a higher ratio of fructose to
glucose is obtained,” and “[o]ne of ordinary skill in the art when designing a medium for a
starter culture incorporates the conditions of the final operation, e.g. winemaking.” For
these reasons, the examiner believes that “[i]t would have been obvious . . . to modify the
medium of [Henick-Kling] and optimize the concentration of carbohydrates as well as the
ratio of fructose to glucose given the known constituents of grapes/wine.” Final rejection,
parent application serial no. 08/273,772, paper no. 20, page 5.
In response, appellants argue essentially that “an underlying basis of the rejection is
that it would be obvious to optimize carbohydrate proportions and amounts starting with a
synthetic medium described in [Henick-Kling] to obtain a medium useful for preparing a
starter culture for winemaking,” but Henick-Kling “does not use the modified MRS medium
it discloses . . . as a culture medium for a starter culture.” Rather, Henick-Kling “uses a
medium containing grape, tomato, and apple juice for starter culture preparation.” Brief,
pages 9 and 10.
Both the examiner’s and appellants’ arguments fall wide of the mark. The recitation
“for a starter culture for winemaking involving malolactic fermentation” in each of the
independent claims is a statement of intended use that does not confer a limitation on the
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