Appeal No. 2003-1918
Application No. 08/945,722
This disclosure evinces that the invention described in the
specification includes a high amylose starch resulting from
gelatinisation and pasting treatments of the type which
(according to the appellants) produce the “Superlose” product
referred to in the Elizer patent.
With the foregoing in mind, we now proceed to assess whether
appealed independent claim 1, when properly interpreted,
encompasses the starch product of Elizer. As correctly indicated
by the examiner and not contested by the appellants, patentee’s
product includes potato-derived starch, namely, “Superlose”
having an amylose content within the here claimed range (e.g.,
see lines 14-25 in column 3). Moreover, patentee expressly
describes his starch product as a granular solid (see lines 63-66
in column 5). This description supports the examiner’s position
that the starch of Elizer is in the form of granules as required
by appealed claim 1.
The examiner’s position is further supported by his citation
to the Whetzel patent which describes “Superlose” as a granular
material (see the paragraph bridging columns 4 and 5). In this
regard, the appellants urge that “[a] reading of the [Whetzel]
specification by one skilled in the art of starch would lead to
the clear understanding that the Patentee does not mean starch
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