Appeal 2006-1981
Application 10/284,837
claims on appeal "read on" something disclosed in the reference (see
Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ 781, 789
(Fed. Cir. 1983), cert. denied, 465 U.S. 1026 (1984)). Anticipation under
this section is a factual determination. See In re Baxter Travenol Labs., 952
F.2d 388, 390, 21 USPQ2d 1281, 1283 (Fed. Cir. 1991) (citing In re Bond,
910 F.2d 831, 833, 15 USPQ2d 1566, 1567 (Fed. Cir. 1990)).
In the case before us, the Examiner has determined that each of Friello
and Witzel discloses, expressly or inherently, a gum (mineral delivery
system) that meets every limitation of the invention set forth in the so
rejected claims. We agree for reasons set forth in the Final Office action, the
Answer and below.
Appellants argue these claims together. Thus, we select independent
claim 1 as the representative claim on which we shall decide this appeal as
to this group of claims.
Appellants do not dispute that each of the applied anticipatory
references describes the addition of calcium carbonate to a gum base
(mineral delivery agent). See Br. 7 and Reply Br. 2. However, Appellants
maintain that the applied anticipatory references teach that soluble acids
must be segregated from other ingredients of the gum base by encapsulation
(Br. 8 and Reply Br. 2). Hence, the applied references do not disclose that
the components (acid and mineral salt) are mixed together in Appellants’
view.
We do not find those arguments persuasive. Besides disclosing that a
gum base (mineral delivery agent) includes a water insoluble mineral salt,
such as calcium carbonate, each of Witzel and Friello describes the use of a
solid acid, such as fumaric acid in a gum base mixture. See col. 9, ll. 50-65
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