Appeal No. 2003-1721 Page 6
Application No. 09/226,143
the Statements in the Specification.3 Moreover, the Examiner does not provide a convincing
alternative interpretation.
The Examiner finds that Kitaoka extracts carotenoids from bacterial cells with
supercritical fluid and, optionally, an entrainer (Answer, p. 4). While the list of entrainers
preferably used by Kitaoka overlaps the list of solvents discussed as useful to form aggregates in
the Statement in the Specification, there is no disclosure in Kitaoka, pointed to by the Examiner,
that describes adding water to a solvent-carotenoid solution. Water and the other solvents are
listed separately by Kitaoka and no combination of the two is mentioned. There is no reasonable
basis presented by the Examiner indicating that aggregates necessarily form when one of
ordinary skill in the art follows the teachings of the reference.
The rejection over Takagaki fails for similar a similar reason: The Examiner has failed to
point to a portion of the Takagaki reference that discloses diluting a water miscible solvent-
carotenoid solution with water. First, we note that, contrary to the finding of the Examiner
(Answer, p. 5), Takagaki does not teach a carotenoid-acetone solution obtained by extraction
with an aqueous medium. Takagaki only discusses the use of acetone solvent in the production
of an organic licorice solvent extract. Carotenoid is added only after the solvent, is removed
3Appellants’ position is further supported by the underlying documents referred to in the portion of the
specification relied upon by the Examiner. All of these references describe diluting a solvent-carotenoid solution
with water. See especially A. V. Ruban, P. Horton, A. J. Young, J. Photochem. Photobiol. B: Biol., 21 229-234
(1993) at p. 230, col. 1, last four lines and p. 231, col. 1, ll. 12-16; V.R. Salares, N. M. Young, P. R. Carey, H. J.
Bernstein, Journal of Raman Spectroscopy, 6(6), 282-288 (1977) at p. 282, col. 2, “Preparation of solutions”; P.
Song, T.A. Moore, Photochemistry and Photobiology, 19, 435-441 (1974) at p. 436, col. 2, “Results”.
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