Appeal No. 2001-0901 Page 4
Application No. 08/937,297
wherein the annatto-caramel colorant blend has a pH of from about 9.1 to 10.
The prior art of record relied upon by the Examiner as evidence of obviousness are:
Kocher 2,831,775 Apr. 22, 1958
Rikon et al. 4,335,153 Jun. 15, 1982
Clark et al. 4,416,700 Nov. 22, 1983
Wullschleger et al. (Wullschleger) 5,223,298 Jun. 29, 1993
Applicants’ admission of prior art as stated on page 7, lines 13-26, of the specification (AAPA)
Claims 1-9 and 13-14 are rejected under 35 U.S.C. § 103(a) as being unpatentable over
Clark in view of either AAPA or Kocher, and further in view of Wullschleger or Rikon.
We refer to the brief, the reply brief, and to the answer for a complete exposition of the
opposing viewpoints expressed by the Appellants and by the Examiner concerning the above noted
rejection.
OPINION
We appreciate the thoroughness with which the Examiner has reviewed and considered these
claims. However, for the reasons set forth below, this § 103 rejection cannot be sustained.
The appealed claim 1 calls for a blend of two food colorants, annatto and caramel. AAPA
establishes that an annatto colorant with the pH range and solids content range as claimed was known.
Clark discloses that a caramel colorant with a pH of “about 7" was known (the Examiner’s position
being that a pH of “about 7" satisfies the claimed pH requirement of “about 6.5 to 6.9"), although
Clark is silent as to any numerical values for the solids content of his caramel solution. The Examiner
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