Appeal No. 2000-1836
Application 08/917,336
pH, is a substantial duplicate of appealed claim 1 which specifies a “neutral” pH.2 Appealed
claim 19, specifies that the water of appealed claim 2, and thus appealed claim 1, contains anode
water. Appealed claims 3 through 5 each specify a different hydrogen concentration range, and
appealed claims 6 and 7 each specify a different oxidation-reduction potential range.
To the extent that the extent that appealed claim 8, which is drawn to the product of
appealed claim 1, is intended by appellants as a method or process of use limitation of that
product, such a limitation has no place in a product claim. Cf. In re Wiggins, 397 F.2d 356, 359
n.4, 158 USPQ 199, 201-02 n.4 (CCPA 1968), and cases cited therein (“[A]ppellant’s discovery
of the analgesic properties of ‘O2’ and of a composition containing it could properly be claimed
only as a method or process of using that compound or composition in accordance with the
provisions of 35 U.S.C. 100(b) and 101.”).
We have carefully reviewed the record on this appeal and based thereon find ourselves in
agreement with the examiner that the claimed hydrogen containing purified water encompassed
by appealed claims 1 through 8 and 19 would have been obvious over Reznik to one of ordinary
skill in this art at the time the claimed invention was made.
We find that, as pointed out by the examiner (e.g., answer, pages 3-5), Reznik prima facie
would have disclosed to one of ordinary skill in this art a processed hydrogen containing water
product which can be prepared by subjecting “distilled water having substantially no impurities”
to an electrolysis process proceeding through a multi-cell apparatus in the direction anode to
cathode, such that the water contains anode water as well as electrolytic dissolved hydrogen, and
has the same range of potential as that claimed, which water can be used as drinking water. See,
e.g., pages 2-6, 26 and 29-33.
The only specified characteristic of the claimed hydrogen containing purified water
product that is not disclosed by Reznik is the pH of from 7.2 to 7.3, required in appealed claim 1.
We agree with the examiner that one of ordinary skill in this art would have employed drinking
water having a pH range that would at least encompass the claimed neutral range, and would
have arrived at an optimum range within that range by routine experimentation. Thus, the fact
2 Since appealed claims 1 and 2 appear to be substantial duplicates, in the event that these claims
are held to be allowable, see Manual of Patent Examining Procedure § 706.03(k) Duplicate
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