Appeal No. 2004-2197
Application No. 09/144,851
Nevertheless, it is the examiner’s position that “[i]t would
have been obvious to those of ordinary skill in the art to
deacidify the fruit juices of Seike [as shown in Jackson] in
order to modify the flavor of the final product.” (Id. at 3-4.)
We cannot agree with the examiner’s analysis. As pointed
out by the appellants (appeal brief at 12-13), Jackson provides
no teaching, motivation, or suggestion to modify Saike’s process
such that calcium carbonate is added to precipitate calcium
citrate and then removing the calcium citrate from the juice
prior to fermentation as recited in appealed claim 21.
Because the examiner did not account for this crucial claim
limitation in the obviousness analysis, we cannot affirm. In re
Geerdes, 491 F.2d 1260, 1262-63, 180 USPQ 789, 791 (CCPA 1974).
The examiner relies on Castillo for reasons unrelated to
the basic deficiency in the combination of Saike and Jackson.
(Answer at 4.) Accordingly, it is unnecessary to discuss this
reference in our decision.
For these reasons, we reverse the examiner’s rejections
under 35 U.S.C. § 103(a) of: (i) appealed claims 21 through 24
and 27 through 30 as unpatentable over Saike in view of Jackson;
and (ii) appealed claim 31 as unpatentable over Saike in view of
Jackson and further in view of Castillon.
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