Appeal No. 1997-2364
Application 08/137,086
molecular weight exclusion limit to separate a subset of the phosphopeptides from the
casein hydrolysate, especially as Brule purposely retains all of them.
As the examiner has not made out a prima facie case for even the broadest claim
on appeal, the rejection of claims 1 through 15, 17 and 18 as anticipated by, or in the
alternative, as obvious over Brule, is reversed.
Rejection II
Claims 1 through 18 stand rejected as obvious over Brule, the same reference as in
the previous rejection.
According to the examiner (Examiner’s Answer, page 5):
The only elements in the references that absent is the specific aqueous salt
solution, CaCl used in the diafiltration steps. The reference teaches
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generally that in the diafiltration step is added, “continuously or
discontinuously, a liquid such as water or aqueous salt-containing solution” . .
. wherein the molecular weight cut-off is chosen between 2000 to 50,000.
The reference further teaches that the phosphopeptides recovered are as
phosphopeptide aggregates (see claims). Therefore, although the reference
does not specifically recite the specific salt-containing solution, it is the
examiners position that it would have been prima facie obvious to one of
ordinary skill in the art to use CaCl in the diafiltration step for isolating the
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phosphopeptide as an aggregated phosphopeptide because this was the
aqueous salt solution used to form the aggregates.
As for the isolation of the anticariogenic peptides, the process would have
inherently isolated those phosphopeptides with anti-cariogenic activity . . .
Again, we see no basis for concluding that it would have been obvious to adjust the
concentration of the bivalent cation and/or the molecular weight exclusion limit to separate
a subset of the phosphopeptides from the casein hydrolysate, as Brule purposely retains
all of them.
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