Appeal No. 2005-1918 Παγε 6
Application No. 09/946,396
a purified galactomannan composition with a protein content lower than 0.40%[,]
[t]herefore, the protein content values reflected in [ ] Gebert . . . are incorrect and are
likely[ ] due to measuring errors resulting from the sensitivity limitations of the [Kjeldahl]
method used in Gebert[ ] for determining protein content” (id.).
Dr. Gurske does not discuss the prior art literature in any detail, except to say
that the references describe galactomannans purified “by centrifugation and ethanol
precipitiation” that “have protein levels greater tha[n] 0.44%” (Declaration, page 4,
emphasis in the original). The primary implication, of course, is that the purification
procedures used in the references are directly comparable to Gebert’s procedure, so
the protein levels of the purified products should be directly comparable as well.
However, even a cursory review of the evidence presented reveals differences between
Gebert’s procedure and the procedures used in the prior art references, e.g.,
differences in the raw starting materials, differences in the duration of various steps in
the purification procedures, differences in the types and concentrations of solvents used
in the procedures, differences in the number of times certain steps were repeated, etc.
Merely by way of example, we note that Gebert’s purification procedure starts
with five specifically identified “commercially available guar gum[s],” one with an initial
protein content of 2.5% and another with 2.88%, while Reference “P” starts with a “guar
Locust Bean Gum by Precipitation with Isopropanol,” Food Hydrocolloids, Vol. 4, No. 4,
pp. 277-287 (1990).
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