Appeal No. 2004-0450 Page 10
Application No. 09/785,936
By definition, enzyme activity is the amount of an enzyme preparation required to effect
a defined amount of a specific reaction in a defined amount of time.” (Id., page 10, first
full paragraph). The argument lacks merit.
The ‘343 patent clearly and unequivocally discloses using Finase enzymes in an
aqueous suspension of a soy protein material; and it is undisputed on this record that
Finase is a commercially available enzyme preparation containing both phytase and
acid phosphatase. The use of Finase is particularly preferred for the purposes of
carrying out the invention disclosed in the ‘343 patent, and its use is illustrated in
comparative examples 2 through 5, pages 7 through 10. The reference puts a person
having ordinary skill in possession of the disclosed embodiment using Finase, and
applicants acknowledge that RNA would be degraded by using an enzyme preparation
containing acid phosphatase in the method of the ‘343 patent. It appears reasonable to
say, therefore, that the amount of enzyme preparation used in the ‘343 patent is the
same or substantially the same as the amount recited in claim 79. On these facts, the
burden of persuasion shifted to applicants to establish a difference between the amount
of enzyme preparation recited in claim 79 and the amount disclosed in the prior art
reference. This applicants have not done. Applicants have presented no objective
evidence or data on this record to show that the amount of enzyme used in the prior art
is distinguishable from the amount recited in claim 79. In fact, applicants agree that
“RNA would be degraded by use of an enzyme preparation containing an acid
phosphatase enzyme in the method of the ‘343 patent” (Appeal Brief, page 8, second
full paragraph). Compare In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-434
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