Appeal No. 2006-1163
Application 09/761,143
is again taught in original claim 15,” and that “anthocyanin is clearly described in the instant
specification as including cyaniding within the broad category of anthocyanin” at page 5, l. 37,
to page 6, l. 3, of the specification, thus arguing that appellants are using “the terms
‘anthocyanin’ for describing the glycosolated forms of this general category of compounds and
cyaniding for the aglycone form of this general category” (brief, page 12).
The examiner contends that “although Appellants have redefined this term [‘cyanidin’] in
the Specification, cyanidin is actually an anthocyanidin” wherein “cyanidin is the core aglycon
structure of all anthocyanins and may be separated from the o-glycoside by hydrolysis with a
strong acid such as HCL as taught in the specification (p. 17-19),” and that “cyanidin is found in
nature in the glycosidic anthocyanin form” (answer, page 6). Thus, the examiner concludes that
the mixture described at page 8, ll. 27-30, of the specification “is not referring to cyanidin,
because cyanidin is not found as a naturally occurring phytochemical without the o-glycoside
attachment (as it was pointed out [above], cyanidin must be hydrolyzed from the naturally
occurring anthocyanin which is the o-glycoside of cyanidin)” (answer, page 7).2 Thus, the
examiner concludes that “based on the Application, Appellants contemplate the use of the
anthocyanins separately, or cyanidin separately, or a mixture of anthocyanins, bioflavonoids and
phenolics isolated from a cherry, [however,] the Specification does not teach any embodiment
which includes a mixture of anthocyanin and cyanidin” (answer, page 7).
In the reply brief, appellants disagree with the examiner’s position that “cyanidin did not
occur in nature (such as cherries),” on the basis that it “is not consistent with the art cited in the
1 The examiner has withdrawn the grounds of rejection under 35 U.S.C. § 103(a) (answer, pages
2-3).
2 We fail to find in claim 15 as originally presented, the language “anthocyanin including
cyanidin” as stated by the examiner (answer, page 7). As originally presented:
1. A method for inhibiting cyclooxygenase or prostaglandin H synthase enzymes
which comprises: providing at least one compound isolatable from a cherry with at
least one of the enzymes to inhibit the enzymes.
15. The method of Claim 1 wherein the compound is contained in a composition
which comprises a dried mixture of isolated anthocyanins, bioflavonoids and
phenolics from cherries and a food grade carrier. [Specification as filed, pages 23 and
25.]
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