Appeal No. 2005-1918 Παγε 7
Application No. 09/946,396
flour” containing 3.5-4.0% protein. Reference “Q” also starts with guar flour (of
unknown protein content). Reference “S” does not discuss protein content at all, and
merely says that whole carob seed or guar seed “is normally ground to a fine powder,
and the gum is extracted by prolonged stirring with hot or cold water, or dilute, aqueous
sodium hydroxide solution; [or] sometimes, 1% acetic acid has been used. The soluble
portion of the gun is then separated by centrifugation or extraction, and the
polysaccharide is recovered by precipitation with ethanol” or methanol or isopropanol.
“Purification of the crude galactomannan is achieved either by repeated precipitations
with alcohol” and “[t]he purification step may be repeated several times.” Reference “T”
uses locust bean gum as a starting material, rather then guar gum.
Dr. Gurske does not begin to account for, or even acknowledge, these
differences between Gebert and the prior art references. In our view, Gebert and the
prior art references are not directly comparable, and do not provide an adequate
evidentiary basis to support Dr. Gurske’s conclusion that Gebert’s purified
galactomannans must have contained at least 0.40% protein. Moreover, Dr. Gurske’s
conclusion that “the protein content values reflected in [Gebert] at column 15, Table 4,
(i.e., 0.06% and 0.00%)” should really have been at least 0.40%, “and are likely[ ] due to
measuring errors resulting from the sensitivity limitations of the [Kjeldahl] method”
(Declaration, page 3) appears to be inconsistent with Dr. Gurske’s acknowledgement
that “[t]he sensitivity of the Kjeldahl method . . . [is] about 0.1 wt%” (id., page 4).
In our view, the examiner has met his burden of providing sufficient evidence to
establish a prima facie case of anticipation, properly shifting the burden of coming
forward with evidence or argument to appellants. Having carefully considered
appellants’ response, we find the evidence and arguments presented to be insufficient
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