Appeal No. 2006-0230 Page 9
Application No. 09/864,083
The examiner recognizes (Answer, page 4), while Gordon teaches a
composition that contains, inter alia, sodium bisulfite, and a derivative of ascorbic
acid (such as ascorbityl palmitate, magnesium ascorbityl phosphate, and
ascorbityl linoleate), Gordon does not teach sodium metabisulfite, aminopropyl
ascorbyl phosphate or sodium ascorbyl phosphate. As we understand it, to
make up for these deficiencies in Gordon, the examiner asserts (Answer,
bridging paragraph, pages 4-5), a person of ordinary skill in the art would have
been motivated to modify Gordon’s disclosure because sodium bisulfite and the
ascorbic acid derivatives disclosed by Gordon share similar chemical structures
and properties with the sodium metabisulfite, aminopropyl ascorbyl phosphate or
sodium ascorbyl phosphate as recited in appellants’ claims.
In support of this assertion, the examiner directs attention to the “extrinsic
supporting documents” listed on the PTO-892 form of record in this application.
Upon consideration of the electronic file wrapper, we find the PTO-892 entered
into the record on April 23, 2003 is the only PTO-892 form of record in this
application. The PTO-892 form of record in this application identifies, in addition
to Gordon and Lukenbach, four other U.S. Patents: U.S. Patent Nos. 6,417,226,
5,874,463, 6,030,374 and 5,935,556. Upon consideration of these references we
find no evidence, and the examiner fails to direct our attention to any specific
evidence, that supports her assertion that a person of ordinary skill in this art
would found it prima facie obvious to substitute sodium metabisulfite,
aminopropyl ascorbyl phosphate or sodium ascorbyl phosphate as recited in
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