Appeal No. 2006-0108
Application No. 09/980,620
35 U.S.C. §103(a)
Claims 5-14 and 16-28 stand rejected under 35 U.S.C. §103(a), as obvious over
Kakuda in view of Ekanayake. Appellants separately argue composition claim 10, and
argue claims 12-14 and 19 as a single group. Brief, page 4. We select claims 10 and
12 as representative.
According to the examiner (Answer, page 5)
Kakuda [ ] as discussed above, teach a caffeine stimulation
inhibitor… The caffeine stimulation inhibitor is preferably used as an
additive of beverages and foods and may also be absorbed in the form of
tablets, capsules, granules or syrup (col. 2, lines 63-67). Kakuda [ ]
disclose various experiments and studies demonstrating the antagonistic
action of theanine (col. 3-5).
Kakuda [ ] is deficient only in the sense that he does not teach
sugars, minerals and acids in the caffeine stimulation inhibiting tea
composition.
Claim 10 is directed to a theanine containing composition, wherein the theanine
is administered in an amount of from 50 to 100% by weight. According to the
specification page 5, "the preferred content of the theanine in the composition is for 5 to
100% by weight." Therefore, it would appear that the amount of theanine in claim 10
refers to the amount of theanine in the composition and does not relate to an amount to
be administered according to body weight. The examiner argues that, “[a]though the
specific range of theanine is not explicitly expressed in the art, it is the position of the
examiner that it is … obvious to one of ordinary skill in the art that suitable percentages
or amounts could be determined through the use of routine or manipulative
experimentation to obtain the best possible results, as these are indeed variable
parameters.” Answer, pages 13-14.
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