Appeal No. 2003-2129
Application No. 09/557,044
active ingredient. Since it is not necessary for Janke to
disclose appellant's use for the fermented biomass composition,
we find that Janke describes the claimed composition within the
meaning of 35 U.S.C. § 102. The recited statement of intended
use, i.e., "for the freeze protection of an agricultural crop,"
does not serve as a limitation which further defines the claimed
composition. It is well settled that a prior art composition
does not undergo a metamorphosis into a different composition
when an applicant uses the prior art composition in a way not
described in the prior art. In re Pearson, 494 F.2d 1399, 1403,
181 USPQ 641, 644 (CCPA 1974). Hence, since anticipation is the
epitome of obviousness, we find that appealed claims 9-12 are
obvious over Janke, considered alone. Moreover, we find that the
claimed fermented biomass material is unpatentable over the
admitted prior art found in the Background section of appellant's
specification.
In conclusion, the examiner's rejection of claims 1-8 under
35 U.S.C. § 103 is reversed, whereas the examiner's rejection
of claims 9-12 under 35 U.S.C. § 103 is affirmed. As a result,
the examiner's decision rejecting the appealed claims is
affirmed-in-part.
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