Appeal No. 1998-0370
Application No. 08/568,410
paragraph). The need to eliminate the protease inhibitor has not been established on this
record. Kitamura describes detergent compositions with a variety of uses including
washing fruits and vegetables. Section 173.315 describes the use and selection of
ingredients for the purpose of washing fruits and vegetables. As stated above, one of
ordinary skill in the art equipped with the knowledge of Kitamura, 21 CFR § 173.315 and
the admitted prior art would have been fully motivated to form compositions suitable for
washing fruits and vegetable which would not be harmful to humans.7
Appellants urge there is no listing in 21 CFR § 173.315 for protease inhibitors.
(Brief, page 3, fourth paragraph). Appellants also filed a declaration under 35 U.S.C.
§ 132 (paper no. 16, filed December 6, 1995) which states that protease inhibitors are not
GRAS. Declarant’s opinion is based upon inspection of portions of 21 CFR in addition to §
173.315. Declarant does not discuss the teaching in Kitamura regarding the compositions
as harmless to humans. There is no discussion that any of Kitamura’s described
compositions would not meet the limitations of claim 1. For these reasons, the declaration
is not probative. Declaration evidence must be considered, but will not be considered
7 We further note that Kitamura discloses the purpose of protease inhibitors in the
composition is to provide amelioration of skin irritation. (Column 2, lines 33-43). Kitamura also
discloses detergent compositions which exclude protease inhibitors. (Note comparative examples,
columns 9-11). One of ordinary skill in the art who did not desire amelioration of skin irritation would
have been motivated to exclude a protease inhibitor from the detergent composition. See Ex parte
Wu, 10 USPQ 2031 (Bd. Pat. App. & Inter. 1989).
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