Appeal No. 2003-2046
Application 09/171,670
addition of capsaicin.” Examiner’s Answer, Paper No. 21, mailed
May 27, 2003, page 4. As pointed out by the examiner, the claims
are directed to a method of making a “composition” and do not
include any limitations relating to dermatological applications.
Examiner’s Answer, page 5. Therefore, like the examiner, we are
unpersuaded by appellant’s initial argument that Strobel is non-
analogous art.
Appellant further traverses the examiner’s argument by
pointing out that several notable differences exist between
Strobel’s process and that of the claimed invention. In
particular, appellant notes that the present claims require
mixing crushed tomatoes and apples together while Strobel’s
process is limited to manufacturing a juice from a single type of
fruit or vegetable. See Appeal Brief, page 5. Additionally,
appellant notes that Strobel filters the squeezed/pressed fruit
or vegetable to remove the solids prior to fermenting the juice.
Conversely, in appellant’s process, the mixture of crushed
tomatoes and apples is allowed to stand and ferment prior to
filtering. See id.; claim 1.
Responsive to appellant’s arguments, the examiner urges
that although Strobel does not exemplify preparing a blend of
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