Appeal No. 2006-1226 Page 9
Application No. 10/272,382
of toothpaste compositions) a polishing agent that can be calcium carbonate. See the
Examiner’s Answer, page 4.
The examiner did not point to any disclosure in Wagner of a 1:1 neutral complex
of copper and either glutamate or aspartate. However, he argued that “given the
broadest reasonable interpretation of the term neutral complex, those of ordinary skill
would assume that the copper salts of Wagner fall within this claim term.” Id., page 8.
We disagree with this interpretation of the reference. The instant specification
teaches that metal amino acid complexes can take any of several forms, including 1:1
complexes “exist[ing] as ion pairs in which the cation is composed of the metal amino
acid complex and the anion is that of a mineral acid” (pages 6-7) and complexes “in
which the ratio of metal to amino acid is 1:2” (page 7). The examiner has provided no
logical or evidentiary basis for concluding that the metal/amino acid complexes taught in
Wagner were the 1:1 neutral complexes of the present claims rather than one of the
other forms cited in the specification.
Although the examiner did not expressly rely on the Gramaccioli references in
explaining the rejection under § 103, he did cite them in setting out the rejection. We
will therefore consider an alternative basis of the rejection: that it would have been
obvious to combine the copper glutamate dihydrate disclosed by Gramaccioli et al. with
the calcium carbonate-containing toothpaste composition disclosed by Wagner.5
5 Wagner focuses on the suitability of copper-containing compounds in dental care compositions. The
examiner has pointed to nothing in Wagner that would suggest adding zinc-containing compounds to
such compositions. Therefore, to the extent that the rejection is based on the combination of Gramaccioli
(zinc glutamate dihydrate) with Wagner, it is reversed for lack of motivation to combine.
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