Appeal No. 2004-0450 Page 8
Application No. 09/785,936
Mehl/Biophile International Corp. v. Milgraum, 192 F.3d 1362, 1366, 52 USPQ2d 1303,
1307 (Fed. Cir. 1999)). Therefore, according to applicants, because “the ‘343 patent
does not require the use of an acid phosphatase enzyme to degrade phytates, although
such an enzyme may be used . . . degradation of RNA in a vegetable protein with an
acid phosphatase is not always present and is not a necessary consequence of the
‘343 patent (Id., page 9, emphasis added). Applicants thus argue a “may” versus
“must” distinction. According to applicants,
the reference teaches processes that may utilize an enzyme preparation
that contains an acid phosphatase enzyme in a vegetable protein
material, but does not teach that the enzyme preparation must contain an
acid phosphatase enzyme --- regardless of the exclusive use of FINASEŽ
enzyme preparations in the comparative examples of the reference.
[Reply Brief, page 3, first full paragraph].
Again, “the reference discloses that use of the FINASEŽ enzyme preparations is a
preferred method of practicing the disclosed invention, but that the process of the
reference is not limited to use of FINASEŽ enzymes and can utilize any phytate-
degrading enzyme preparation containing one or more phytate-degrading enzymes”
(Id., page 4). Applicants argue that “[t]he cited reference, therefore, clearly did not
intend to limit the disclosed method of reducing phytates and phytic acids to using only
FINASEŽ enzyme preparations” (Id., page 5, first full paragraph). The argument lacks
merit.
The ‘343 patent discloses the use of Finase enzymes as a particularly preferred
embodiment. See the ‘343 patent, page 6, lines 26 and 27; and see comparative
examples 2 through 5, pages 7 through 10. Again, it is undisputed on this record that
Finase is a commercially available enzyme preparation containing both phytase and
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