Appeal No. 2003-1018
Application No. 09/093,771
The examiner relies on Chayen for the disclosure of a method of making a
protein-lipid complex from raw vegetable material comprising intruding the vegetable
material into a hammermill in a liquid aqueous carrier wherein the liquid comprises
water to which an alkalizing agent has been added. To alkalize the water Chayen
employed sodium hydroxide, sodium carbonate or potassium carbonate. The use of
soybeans as the vegetable material is described at column 4, line 32. Chayen also
discloses that the proportion of lipid to protein is from 40-60% by weight of the lipid in
the complex, which covers the 45% amount present in claim 1. Answer, page 4.
The examiner acknowledges that Chayen does not disclose that sodium
chloride, potassium chloride and ammonium chloride may be used as the “substances
to aggregate proteins.” Id. To make up for this deficiency in Chayen, the examiner
relies on Yoshimura for the use of sodium chloride, potassium chloride and ammonium
chloride as “substances to aggregate proteins.” Id.
The examiner summarizes (Answer, page 4):
It would have been obvious to one of ordinary skill in the art having the
Chayen and Yoshimura [] patents before him to substitute the sodium
hydroxide, sodium carbonate or potassium carbonate used in the Chayen
patent with the sodium or potassium chloride of the Yoshimura [] patent
since both set[s] of compounds contains [sic] an alkali metal and because
Yoshimura [] shows that the sodium or potassium chloride is effective in
promoting the aggregation of lipids with proteins.
Appellants argue the examiner has failed to set forth a prima facie case of
obviousness based on the cited references. Brief, page 6. We agree.
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