Appeal No. 2002-2146
Application No. 09/428,261
1990)(Discovery of a new property of a previously known
composition cannot impart patentability to claims to the known
composition); In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433
(CCPA 1977)(Where the claimed and prior art products are
identical or substantially identical, the PTO can require an
applicant to prove that the prior art products do not necessarily
possess the characteristics of the claimed product). On this
record, there is no objective evidence that the calcium
supplement of Mehansho differs from the claimed calcium
supplement.
Appellant argues that the claims now contain premix
stabilizer limitations that exclude or limit the amounts of such
stabilizers, and such limitations are not taught or suggested by
the cited art (Brief, page 3). This argument is not persuasive.
As discussed above, claim 1 limits the amounts of recited sugar
premix stabilizers to “less than an effective amount” to keep at
least 75% of the calcium ions in solution for at least about 2
days (see the Brief, page 4), but this amount is defined in the
specification as including from 1 to 14% of the listed sugar
stabilizers (see the specification, page 11, ll. 11-12). Since
this is the same amount of premix stabilizers taught by Mehansho
(col. 11, ll. 14-15), this limitation recited in claim 1 on
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