Appeal No. 2003-2147
Application No. 09/392,243
According to the examiner, Van Gorp teaches a process wherein mucosal protein
hydrolysate is added to protein-containing food or feed. Van Gorp also discloses the
preservation of the mucosa starting material using well known preservatives. Answer,
page 4; Final Rejection, page 3. The examiner finds that Van Gorp differs from the
claimed invention in that Van Gorp does not use the claimed peroxide or phosphoric
acid as a preservative. Id.
To make up for this deficiency in Van Gorp, the examiner relies on Balslev and
Oles for the teaching that both phosphoric acid and peroxide were well known
preservatives in food and/or pharmaceutical applications. Thus, according to the
examiner, the claimed substitution of well known preservatives for those used in Van
Gorp must be considered an obvious substitution of one known equivalent preservative
for another. Id, at 4. The examiner continues that, “the artisan of ordinary skill at the
time of applicant's invention would have had a reasonable expectation from Oles and
Balslev that phosphoric acid and/or peroxide would have functioned equivalently to the
preservatives disclosed by Van Gorp, the artisan of ordinary skill would have been
motivated to have substituted Oles' phosphoric acid and/or Balslev's peroxide for the
preservatives disclosed by Van Gorp.” Answer, pages 4-5.
Appellants respond, arguing, “there is no teaching or suggestion in the Van Gorp
patent to use any preservative other than an oxygen scavenger, an antioxidant, or in
low acidity environments, calcium propionate. ... In this regard, the Van Gorp patent
principally mentions use of sodium metabisulfite as an oxygen scavenger, while also
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