Appeal No. 2001-2538 Page 4
Application No. 08/894,193
Discussion
The claims are directed to a method of stabilizing food containing sorbic
acid and/or a sorbate salt, by adding allantoin, either alone or in combination with
citric acid and/or a citrate salt. The claims also encompass food and cosmetic
products so treated. The examiner rejected some of the claims as lacking an
adequate written description, and rejected all of the claims as obvious over
Hirohata.
1. Written description
The examiner rejected claims 21, 27, 32, and 33 under 35 U.S.C. § 112,
first paragraph, on the basis that they were not adequately described by the
specification. The rejected claims all recite either (a) sorbic acid, a sorbate salt,
or a combination of the two, or (b) citric acid, a citrate salt, or a combination of
the two. The examiner’s rejection is based on the claims’ recitation of a
combination of sorbic acid and a sorbate salt, or the combination of citric acid
and a citrate salt. See the Examiner’s Answer, pages 4-5:
The appellant originally claimed a method for visual and sensorial
stabilization applied to a foodstuff composition comprising adding
sorbate or sorbic acid. . . . The appellant also originally claimed a
method for visual and sensorial stabilization applied to a foodstuff
composition comprising adding citrate or citric acid. . . . [T]he
specification as originally filed does not suggest that appellant had
possession of the concept of the invention that is now claimed, a
combination of sorbic acid and sorbate, and a combination of citric
acid and citrate.
The examiner “‘bears the initial burden . . . of presenting a prima facie
case of unpatentability.’ In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). Insofar as the written description requirement is
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