Appeal 2006-1584
Application 10/139,118
The process claims stand on a different footing. To meet the
requirements of the claimed process, the homogenization must occur before
the acidification. The Examiner finds that Wander discloses “[t]he concept
of adding acid to the emulsion after homogenisation” in Example 1 (Answer
4). But, Example 1 does not disclose homogenization before addition of
acid; all that is disclosed is fully emulsifying the oil. This emulsification
seems to involve nothing more than stirring as disclosed on page 2, lines 4-6
of Wander. The Examiner does not explain how this or any other portion of
Example 1 supports the finding that the concept of homogenizing before
acidification is disclosed.
The deficiencies of Wander are not cured by 21 C.F.R. §§ 169.3-
169.150 and Lowe. Those references are relied upon for other aspects of the
claimed subject matter.
We conclude that the Examiner has failed to establish a prima facie
case of obviousness with respect to the subject matter of claims 10, 13, 14,
and 16.
Turning to the rejection of claims 11, 12, and 17, we note that the
Examiner relied upon Bialek in this rejection solely for a suggestion of using
a high pressure homogenizer to perform homogenization. Wander also
discloses using a high pressure homogenizer to completely emulsify the
emulsion, but this complete emulsification occurs after the addition of acid.
Therefore, adding the high pressure homogenizer of Bialek to perform the
homogenization of Wander does not cure the deficiency of Wander as relied
upon by the Examiner. In Wander, homogenization occurs after
acidification, not before homogenization as required by the claimed process.
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