Appeal No. 2002-1364 Page 4
Application No. 09/402,761
sucrose, methyl oleate, sucrose oleate (degree of substitution of 1.5) and sodium
carbonate at 150°C under a vacuum of 3 mmHg with stirring at a linear speed of
3 m/sec. for 1.5 hours. The examiner argues that the reagents recited in claim 11 "read
on" the reagents used in Example 2 of Yamamoto; and that the difference between
these respective processes is "the order of combining reagents" (Paper No. 14, page 4,
last paragraph).
Claim 11 requires a specific order of combining reagents, viz., providing a
catalytically active mixture containing an alkali metal carbonate and a fatty acid lower
alkyl ester having formula (I); providing an emulsifier mixture containing a glycose
component having from 5 to 12 carbon atoms and a carbohydrate partial ester; and
combining the catalytically active mixture with the emulsifier mixture, with vigorous
stirring, to form an emulsion/dispersion containing particles having a mean diameter
from 10 to 60 :m. In Example 2, Yamamoto discloses that a 3 liter flask was charged
with 221.3 g of sucrose, 1501.0 g of methyl oleate, 200.0 g of sucrose oleate (D.S. of
1.5), and 77.7 g of sodium carbonate. The mixture was heated with stirring to a molten
state, then reacted at 150° C under a vacuum of 3 mmHg with stirring at a linear speed
of 3 m/sec. for 1.5 hours.
In an effort to bridge the difference between applicants' claimed process and the
process disclosed by Yamamoto, the examiner appears to invoke a per se rule of
obviousness. As stated in Paper No. 14, page 4, last paragraph, "it is prima facie
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