Appeal No. 2002-2146
Application No. 09/428,261
acid:base equivalents recited in claim 1 on appeal is taught by
Mehansho (id.; see the decision in Appeal No. 1995-1058, pages 4-
5). The amount of citric acid and malic acid taught by Mehansho
overlaps the claimed ranges (see the decision in Appeal No. 1995-
1058, page 4).
With respect to claim 1 on appeal, the examiner finds that
this claim differs from the reference by requiring “less than an
effective amount” of a premix stabilizer to keep at least 75% of
the supplement’s soluble calcium ion in solution for at least
about 2 days (Answer, page 3). However, the examiner finds that
Mehansho teaches that 1 to 14% of these stabilizers, if used,
should be present in the beverage (id., citing col. 11, ll. 9-
20), while the amounts of sugar premix stabilizers taught by
appellant that are “less than an effective amount” include the
same range, i.e., 1 to 14% (specification, page 11, ll. 10-15).
Therefore the examiner concludes that since the same composition
has been taught by the reference as recited in claim 1 on appeal,
it would have been obvious that at least 75% of the supplement’s
soluble calcium ions would have stayed in solution for at least
about 2 days (Answer, page 4).
Claims 23 and 69 exclude the use of various sugars as premix
stabilizers through the term “consisting of” and a negative
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