Appeal No. 2003-2046
Application 09/171,670
juices, he does teach that beverages can contain blends. See
Examiner’s Answer, page 8, referencing Strobel, column 4,
lines 4-10. We find that the examiner has mischaracterized the
referenced portion of Strobel. As pointed out by appellant,
Strobel does not teach mixing two crushed fruits and/or
vegetables. See Appeal Brief, page 5. Rather, Strobel teaches
that individual juice concentrates (i.e., post filtration and
fermentation) may be mixed together to provide a blend. Id.
With respect to the differences in processing steps
between Strobel and the claimed invention, the examiner asserts
that:
It is within the skill in the art to use
conventional methods and ingredients for
making a composition in any combination or
order and expect similar results. See In re
Levin, 84 USPQ 232 (CCPA 1949). Nothing critical
is seen in the conventional steps and ingredients
instantly claimed. Nothing critical has been
shown in the length of the standing time.
Assertions of unexpected results do not provide
patentability to the claims. Strobel teaches at
column 4, lines 409 [sic, 4-9] that blended
beverages or juices are useful. One of ordinary
skill in the art would expect any combination of
the disclosed fruits or vegetables to be useful in
the reference composition. [Examiner’s Answer,
page 4]
We do not find these arguments persuasive. The examiner is
reminded that the initial burden of proof is on the Patent Office
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