Appeal No. 2005-1949
Application No. 09/829,168
composition of whey will vary considerably, depending on the
source of the milk and the manufacturing process involved.” (Page
4888, column 1, lines 29-31). One of ordinary skill in the art
understands that whey has several components, including fat,
protein, lactose, ash, nitrogen and water. (Id.) The references,
and the claims, are discussing the protein content of whey.
Meyer expressly describes the ultrafiltration purification
of whey over membranes to remove water, lactose, salts, and low
molecular substances to retain whey proteins. (Meyer, sentence
spanning pages 3 and 4). One of ordinary skill in the art would
have understood this as describing that the whey can have
different contents and Meyer expressly accounts for those in its
examples. See, e.g. Meyer, page 5, line 25, which recites, in
Example 1, “20% Whey protein with 1% lactose fraction.” See also
examples 2-5, which give raw protein percentages by weight.
Furthermore, both the claim and the reference do not speak
to “total whey content” as argued by the appellant; rather, the
claim recites that the protein comprises whey and the reference
describes the underlying composition of whey.
Accordingly, we find that Meyer’s description of a ratio of
casein:whey with an endpoint of 70:30 does describe the
appellant’s claimed ratio of “about” 70:30.
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