Appeal No. 2001-2538 Page 10
Application No. 08/894,193
secondary amino groups, can also be responsible for color changes.”); page 5
(“[D]egradation products of sorbic acid formed oxidatively can react to a
particular extent with foodstuff constituents of high nutritional physiology value,
such as amino acids.”); and page 8 (“The fact that allantoin, although it contains
three secondary amino groups and one primary amino group, is capable of
preventing sorbate-induced discolorations in cosmetic compositions and
foodstuffs seems particularly surprising. Amino groups are regarded as an
additional ‘risk factor’ with respect to sorbate-induced discolorations.”).
We find it unnecessary to precisely construe this claim term, however,
because the rejection must be reversed even under the examiner’s claim
construction. The only composition disclosed by Hirohata that contains EDTA is
the exemplary mouthwash composition shown on page 11 of the English-
language translation. See Table 1. The examiner does not dispute that the
disclosed mouthwash is not a “foodstuff composition” as required by claims
21-37. See the Examiner’s Answer, page 5: “Hirohata describes the method for
visual and sensorial stabilization of a cosmetic composition containing sorbic
acid” (emphasis added). Thus, Hirohata does not inherently meet the limitations
of the claims, and the examiner has provided no clear rationale why Hirohata
would have led a person skilled in the art to modify an EDTA- and sorbate-
containing foodstuff composition by adding a discoloration-inhibiting amount of
allantoin to it.
Nor does the mouthwash composition meet the limitations of claim 38.
Even if a mouthwash is a cosmetic composition, the evidence shows that EDTA
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