Appeal No. 1997-2364
Application 08/137,086
Brule et al. (Brule) 4,816,398 Mar. 28, 1989
In the Examiner’s Answer (paper no. 19), the examiner withdrew the two rejections
(under 35 U.S.C. §§ 102 and 103) set forth in the final rejection (paper no. 11), and
entered two new rejections. In response to the new grounds of rejection, appellant
proposed amendments to the claims, and submitted arguments largely directed to the
proposed claims (Reply Brief, paper no. 21). The examiner refused to enter the
amendments, maintaining that the amendments would require additional searching and
more than a cursory review of the record, and continued to address the claims as
presented at the time of the final rejection (Supplemental Answer, paper no. 22). Appellant
made no further response. As matters now stand, the claims are rejected as follows:
I. Claims 1 through 6, 8 through 14, 17 and 18 under 35 U.S.C. § 102(b) as
anticipated by, or in the alternative, under 35 U.S.C. § 103 as obvious over Brule.
II. Claims 1 through 18 stand rejected under 35 U.S.C. § 103 as obvious over
Brule.
We reverse both rejections.
DISCUSSION
“[F]our of the many phosphopeptides released by tryptic digestion of casein”
“contain the active sequence Ser(P)-Ser(P)-Ser(P)-Glu-Glu” and “have anticariogenic
(tooth-decay-inhibiting) activity.” According to appellant, “[p]hosphopeptides in the
presence of 1.0% w/v calcium (II) aggregate” and “[t]he anticariogenic phosphopeptides . .
. form hexamers which [can be] separated from the smaller non-anticariogenic
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