Appeal No. 2004-0450 Page 4
Application No. 09/785,936
Claims 79 through 94, 97 through 111, 113 through 118, and 120 through 129
stand rejected under 35 U.S.C. § 102 as anticipated by or, in the alternative, under 35
U.S.C. § 103 as unpatentable over the ‘343 patent. This reference discloses a method
for producing a phytate-free or low phytate soy protein isolate and concentrate using
one or more phytate-degrading enzymes. The ‘343 patent discloses phytate-degrading
enzymes which include phytases and acid phosphatases. “Particularly preferred for the
purposes of the present invention are the Finase enzymes” (‘343 patent, page 6, line
26). It is undisputed on this record that Finase is a commercially available enzyme
preparation containing both phytase and acid phosphatase.1
The examiner’s main argument is that, although the prior art does not explicitly
disclose the degradation of RNA, a person having ordinary skill in the art, armed with
the disclosure of the ‘343 patent and carrying out its method using the preferred
enzyme, Finase, would inevitably and necessarily degrade RNA present in the soy
protein.2
According to applicants, claim 79 is not anticipated by the cited prior art because:
[T]he ‘343 patent does not disclose 1) the degradation of ribonucleic
acids; 2) where the ribonucleic acid degradation is effected with an acid
1 “A combination of phytase and a pH 2.5 optimum acid phosphatase form A. niger has been
used by Alko, Ltd. as an animal feed supplement in their phytic acid degradative product Finas [sic] F and
Finase S.” U.S. Patent No. 6,190,897 issued February 20, 2001, to Kretz, column 2, lines 18 through 22
(copy enclosed with this opinion).
2 See the Final Rejection (Paper No. 9, page 3), “the degradation of RNA is inherent to the
enzyme digestion of the vegetable protein as disclosed by the cited reference;” and see the Examiner’s
Answer (Paper No. 15, page 5), “RNAs are inherently degraded by the acid phosphatase present in the
Finase enzyme of the cited disclosure.”
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