Appeal No. 2005-0295
Application 10/151,586
Abdel-Malik also discloses that zein may be used alone or in combination with other
proteins (e.g., col. 11, ll. 58-63). The reference teaches a non-limiting grouping of “organic
plasticizers” as well as a preferred grouping thereof, wherein the listing includes certain types of
organic compounds that include a number of specific plasticizers from Table 1 as well as
additional specific plasticizers, but without reference to any specific protein, and indeed, one of
ordinary skill in this art would have inferred from this disclosure that this listing of plasticizers is
generic and not based on a particular protein, of which the reference discloses a number of
different types (col. 4, ll. 14-17, col. 11, ll. 58-67, and col. 12, ll. 8-27). Another grouping of
typical plasticizers includes ethanol, propylene glycol, ethylene glycol, acetic acid and lactic acid
(col. 12, ll. 37-45). A disclosed group of blends is based on zein and different plasticizers
including water (col. 12, ll. 46-51). Abdel-Malik further illustrates the procedure for identifying
plasticizers for zein in Example 1, Tables 5 and 6, namely ethanol and propylene glycol (col. 20,
l. 17, to col. 21, l. 4), and for forming plasticizer proteinaceous materials from zein with glycerol
and propylene glycol, with and without water, and with propylene glycol alone in Example 2,
Tables 9, 10a-c, 11, 12, 23 and 33 (cols. 21-24, 30 and 33). The reference further illustrates gum
preparation with plasticized proteinaceous material, including chewing gums, with zein
plasticized with glycerol, propylene glycol, and other ingredients in Example 3, Subexamples
A3, B1, B5, B7, B9, B10 (cols. 35, 36 and 38-40).
With respect to the grounds of rejection under §§ 102(b) and 103(a), the examiner finds
that Abdel-Malik discloses a method of preparing a gum base of zein and a plasticizer as
claimed, wherein a number of plasticizers listed in col. 12 fall within the claimed ranges for the
electron acceptor to total carbon atoms ratio (EA/C) and electron donor to total carbon atoms
ratio (ED/C), and are the same plasticizers disclosed by appellants in specification Table 1 (page
12), including lactic acid, propylene glycol, ethyl lactate and butyl lactate, thus inherently
satisfying the EA/C and the ED/C requirements of the claims (answer, pages 2-3). The examiner
further determines that finding the optimum EA/C and ED/C is a matter of routine
experimentation by one of ordinary skill in the art (id., page 3).
Appellants submit that Abdel-Malik does not teach selecting a plasticizer based on EA/C
and ED/C (brief, page 11). Appellants point out that the claimed ratios predict the amphiphilic
properties of the plasticizer, pointing to page 7, ll. 6-11, of the specification, that is, sufficient to
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