Appeal No. 2006-1163
Application 09/761,143
preparation of “cyanidin” in the written description in appellants’ specification is with respect to
hydrolysis of anthocyanins, either in a reaction vessel or in vivo, and “aglycon cyanidin” was
tested in specification Example 4.
The unqualified term “cyanidin” appears in appealed claims 1 and 15, and on this record
refers to both cyanidin per se and aglycon cyanidin. The issues thus raised by appellants in the
reply brief, relying on Dekazos, are whether one skilled in this art armed with the knowledge of
the use of the terms cyanidin per se, aglycone cyanidin, aglycon cyanidin and cyanidin aglycone,
and of Dekazos, in considering the disclosure in the written description in the specification
would have recognized that cyanidin per se would have been present in the mixtures of
anthocyanins, bioflavonoids and phenolics prepared from Balaton and Montmorency cherries
following the protocol disclosed at specification FIG. 5 and specification Examples 1 and 2;
that the mixtures of specification Examples 1 and 2 tested in specification Example 6 contained
containing cyanidin per se; that mixtures of anthocyanins 1-3 of specification FIG. 1 tested in
specification Example 4 contained cyanidin per se; and that cyanidin per se was separated from
such mixtures.
The record shows that the examiner considered and entered the reply brief and thus
Dekazos, which in any event, is in the record as set forth in the specification as filed. We find no
form in the official electronic files of the USPTO indicating that Dekazos was officially made of
record as considered by the examiner.
Accordingly, the examiner is required to take appropriate action consistent with current
examining practice and procedure to enter Dekazos into the record and to consider the issues
raised by appellants relying on this reference in the reply brief as we have stated these issues
above, in light of our finding and discussion above of the written description in the specification
and the meaning of the terms used therein, with a view toward placing this application in
condition for decision on appeal with respect to the issues presented.
This remand is made for the purpose of directing the examiner to further consider the
grounds of rejection. Accordingly, if the examiner submits a supplemental answer to the Board
in response to this remand, “appellants must within two months from the date of the
supplemental examiner’s answer exercise one of” the two options set forth in 37 CFR
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