Appeal No. 2001-2247 5
Application No. 08/955,717
prior art, it is not inventive to discover the optimum or workable ranges by routine
experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA
1955). However, contrary to the examiner’s assertion, “the general conditions of a
claim” are not within the prior art. The examiner has not shown any teaching or
suggestion in Reuther to use more than 17 million viable cells per milliliter and also has not
established why one of ordinary skill in the art would have been led to amounts more than
necessary to achieve the desired result taught by Reuther.
Our position is further supported by the teaching in Helm that the concentration of
yeast utilized therein of about 10 to 20 million cells per milliliter constitutes a relatively
high concentration of yeast. See column 5, lines 53-55. Accordingly, why would the
person having ordinary skill in the art be motivated to utilize a concentration of yeast
fourfold that of the maximum disclosed by Helm and almost fivefold the amount disclosed
by Reuther?
For the foregoing reasons, we determine that the examiner has not established a
prima facie case of obviousness in view of the references of record. Accordingly, the
rejection of claims 1 through 8 under 35 U.S.C. § 103 is reversed.
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