Appeal 2006-1584
Application 10/139,118
The Examiner rejects claims 1-10 and 13-16 under 35 U.S.C. § 103(a)
as unpatentable over Wander in view of 21 C.F.R. §§ 169.3-169.150 and
Lowe.1 To reject claims 11, 12, and 17, the Examiner adds Bialek.
We sustain the rejection of claims 1-9 and 15, but we do not sustain
the rejection of claims 10-14, 16, and 17. We further remand the
Application to the Examiner for further consideration and action. Our
reasons follow.
OPINION
Focusing first on claim 1, we note that this claim is directed to an
emulsion containing specified ingredients and having a pH in a specified
range. The claim also recites a particular process sequence requirement, i.e.,
homogenization is to occur before acidification.
The Examiner has found that Wander teaches or suggests an emulsion
having all the claimed ingredients in amounts within or overlapping the
claimed ranges and with a pH overlapping the claimed pH. With respect to
claim 1, the disclosure in Wander is sufficient to establish a prima facie case
of obviousness. A prima facie case of obviousness typically exists when the
ranges of a claimed composition encompass and/or overlap the ranges
disclosed in the prior art. In re Geisler, 116 F.3d 1465, 1469, 43 USPQ2d
1362, 1365 (Fed. Cir. 1997).
Appellants argue that Wander does not disclose the specific amount of
casein salt employed in the presently claimed invention (Br. 9). We do not
find this argument persuasive because Wander suggests using amounts in the
1 The listing of claim 18 instead of 16 in the Answer is harmless error.
3
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007