Appeal No. 1999-1229
Application 08/543,975
patent that such an effect will be obtained, in vivo or in vitro, using two different lactases,
derived from two different microorganisms. As discussed above, Kan discloses methods
of treating lactose, in vitro, to produce monosaccharides to use as food and drink additives.
To that end, Kan states that “a superior processing effect” can be obtained when
successive lactase treatments are performed. That is, Kan discloses a method wherein
first one lactase derived from one microorganism is added to a lactose solution, the
hydrolysis reaction performed, and the first enzyme inactivated; then a second lactase is
added, a second hydrolysis reaction performed, and the second enzyme inactivated. Kan,
col. 3, lines 25-34. Kan discloses that when successive treatments are performed, the
reaction can be more easily controlled and, thus, “a superior processing effect can be
obtained.” Id. Accordingly, we find Kan’s teachings with respect to a “superior processing
effect” are diametrically opposed to the examiner’s interpretation and application of said
teachings.
Second, as discussed above, we find no teaching or suggestion in Kan to combine
a lactase derived from K. lactis and a lactase derived from A. oryzae into a single solid,
oral administrable formulation. Nor do we find, and the examiner has not pointed out, any
teachings or suggestions in the Kan patent to administer two different lactases having two
different optimum pH ranges to maximize lactose hydrolysis (i) in vitro or in vivo, or (ii) as
the lactose travels through the stomach to the intestine. Rather, on this record, we only find
such suggestions in the appellants’ disclosure. Thus, we agree with the appellants that the
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