Appeal No. 2004-0450 Page 9
Application No. 09/785,936
acid phosphatase; and applicants acknowledge that RNA would be degraded by using
an enzyme preparation containing an acid phosphatase enzyme in the method of the
‘343 patent (Appeal Brief, page 8, second full paragraph). In our judgment, a person
having ordinary skill in the art, given the disclosure of the ‘343 patent and its preferred
embodiment using Finase enzymes, would inevitably and necessarily degrade RNA in
the manner recited in claim 79. That a person having ordinary skill may work within the
broad disclosure of the ‘343 patent without using Finase, or that the ‘343 patent
discloses non-preferred embodiments, does not detract from the examiner’s position.
The ‘343 patent clearly and unequivocally discloses the use of Finase, and puts a
person having ordinary skill in possession of the embodiment using Finase. Admittedly,
RNA is degraded when using Finase in the method of the ‘343 patent.
Enzyme Concentration
Applicants also argue that “the ‘343 patent does not inherently disclose that the
acid phosphatase enzyme is present in the mixture of enzyme and vegetable protein
material in an amount relative to the protein material of from about 0.1% to about 10%
by weight of the protein material (dry).” (Appeal Brief, page 9, first full paragraph).
Applicants acknowledge that enzyme dosages in the ‘343 patent “are presented as
phytate-degrading units/g [soy] flakes” (the ‘343 patent, page 8, line 2). Nonetheless,
according to applicants, “an enzyme activity level is not equivalent to a specified
amount or concentration of an enzyme---it merely discloses how active the enzyme is.
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