Appeal No. 2005-2436
Application No. 09/827,686
the recitation of "comprising" in the first line of claim 1
"opens" the claim to ingredients other than those specifically
recited, for instance, the papaya leaves of Finberg. The
appealed claims encompass a composition that comprises a carrier
consisting of 100% cabbage leaves and another carrier consisting
of 100% papaya leaves. We note that appellants attempted to
amend the claims accordingly after final rejection, but this
amendment was not entered by the examiner.
Appellants also maintain that "Finberg teaches flavoring of
cabbage leaves prior to grinding/shredding" (page 7 of principal
brief, last paragraph). The examiner properly notes, however,
that the appealed claims do not recite "any particular order of
flavoring/grinding . . . [and] are drawn to a product, not a
method" (page 10 of Answer, second paragraph).
Appellants also argue with respect to both § 102/§ 103
rejections that the references do not disclose the claim
requirement that the cabbage leaves have at least 30% intact cell
walls. However, it is well settled that when a claimed product
reasonably appears to be substantially the same as a product
disclosed by the prior art, the burden is on the applicant to
prove that the prior art product does not necessarily or
inherently possess characteristics attributed to the claimed
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