Appeal No. 2001-2247 4
Application No. 08/955,717
pitching the wort, “to provide a cell count of about 80 to about 180 million yeast cells per
ml.”1 In this respect, the reference to Reuther states that “yeast is added to the wort to
provide thirteen (13) to seventeen (17) million viable cells per milliliter.” See column 3,
lines 1-5. Furthermore, the secondary reference to Helm, directed to the removal of
hydrogen sulfide from fermented beverages by electrolysis, likewise discloses a fermentation
process wherein, “a relatively high concentration of yeast is used, for example, about 10 to
20 million cells per millilitre.” See column 5, lines 53-55. Based upon the finding in
Reuther, the examiner states that, “[w]ith respect to the amount of yeast added, this is a
result effective variable.” See Answer, page 4. Furthermore, the examiner concludes that
although, “Appellants may be using about 3 times what the prior art teaches does not
overcome the obviousness of using that amount.” See Answer, page 6. We disagree.
The examiner has based his conclusion on Reuther, who teaches beneficial results
when adding Yeast in an amount of 13 to 17 million viable cells per ml. However,
Reuther teaches addition of a maximum amount of 17 million viable cells per milliliter.
The minimum amount of yeast cells per milliliter required by the claimed subject matter
are about 80 million cells per milliliter.
It is well settled that, “where the general conditions of a claim are disclosed in the
1We interpret the term “about 80" to mean about 80 million yeast cells. Our position is supported
by both the interpretation of the examiner and appellants. See the substitute Appeal Brief (Paper No. 42)
wherein appellant states that the claimed invention requires “a pitching rate of from 80 million to 180
million yeast per ml.” See Page 4. See Appeal Brief, page 3. The examiner likewise concurs. See Answer,
pages 4 and 6.
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