Appeal No. 2005-1949
Application No. 09/829,168
The appellant, on the other hand, relying on an excerpt from
the Encyclopedia of Food Science, Food Technology and Nutrition,
makes a single assertion against the case of anticipation. The
appellant asserts as his sole argument against anticipation that
sweet whey and acid whey have a crude protein content of 12.9%
and 11.7%, respectively. Therefore, it is urged, the two
proteins of whey cannot describe a total whey content and Meyer
therefore does not disclose a casein:whey ratio of about 70:30.
(Appeal Brief, December 20, 2004, page 8, lines 22-27).
We are not persuaded by this argument.
First, we observe that Meyer, the appellant’s claims 1 and
9, and the appellant’s specification all reference the protein
content in percentages by weight. (Meyer, page 7, last line,
Specification, page 2, lines 15-18). Meyer specifically
describes what the appellant is claiming, in protein content, by
weight.
The appellant urges that Meyer does not describe what he is
claiming because page 4888 of the Encyclopedia gives, in table 1,
the composition of sweet and acid whey powders as having 12.9 and
11.7 percent crude protein.
This contention is without merit. On the same page the
appellant references, the Encyclopedia notes that “[c]learly the
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