Appeal No. 2001-2538 Page 6
Application No. 08/894,193
both in the form of free sorbic acid and as the physiologically acceptable salts
thereof.”
The examiner has not adequately explained why these passages would
not have been read, by a person skilled in the art of food chemistry, to support
the claim limitation allowing the use of a combination of sorbic acid and a sorbate
salt, or a combination of citric acid and a citrate salt. The rejection under 35
U.S.C. § 112, first paragraph, is reversed.
2. Obviousness
The examiner rejected all of claims 21-38 as obvious in view of Hirohata.
The examiner characterized Hirohata as
describ[ing] the method for visual and sensorial stabilization of a
cosmetic composition containing sorbic acid or its salt, and allantoin
for use as a browning inhibitor. He also describes the addition of a
citrate. . . . Optimization of amounts is considered within the skill of
the artisan, absent evidence to the contrary.
Examiner’s Answer, page 5. The examiner concluded that
Hirohata describes all of the limitations of appellant[’]s claims
except for the presentation of the sorbate concentration calculated
as a sorbic acid. . . .
. . .
It would have been obvious to one of ordinary skill in the art at the
time of the invention to use the composition of Hirohata to meet
appellant[’]s composition as claimed. The motivation for using
Hirohata is that he provides similar active ingredients, sorbates,
citrates and allantoins in a cosmetic composition for the same
purpose of inhibiting discoloration. The reasonably expected result
is an improved method of inhibiting discolorations that is effective in
guarding against bacteria as well as enhancing the cosmetic
appearance of the dentifrice.
Id., page 6.
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