Appeal 2006-1981
Application 10/284,837
§ 103(a) Rejection
Concerning the Examiner’s obviousness rejection of claims 7-9, 15,
and 21, Appellants argue the claims together. Thus, we select claim 7 as the
representative claim on which we decide this appeal as to this ground of
rejection. Representative claim 7 requires that the mineral salt is of about
0.1 to about 200 microns. The Examiner has reasonably determined that it
would have been obvious to one of ordinary skill in the art to select an
appropriate workable or optimum size for the gum base additives of each of
the applied references upon routine experimentation and in so doing arrive at
the claimed subject matter.
Appellants argue this rejection based on the same arguments made in
opposition to the anticipation rejection. For reasons stated above and in the
Answer, such an argument is unpersuasive of unobviousness.
Moreover, Appellants maintain that the references teach away from
the claimed subject matter based on their concern with a lasting sourness
taste derived from their gum. This would be at odds with mineral delivery
as Appellants are allegedly concerned with, according to Appellants.
We do not find that argument persuasive because representative claim
7 is open to the inclusion of flavor components and encapsulated acids, as
discussed above. Thus, representative claim 7 is inclusive of products which
would be capable of prolonging delivery of acid and a sour taste. As such,
Appellants have not established that either of the applied references teaches
away from, or would discourage one of ordinary skill in the art, from making
a gum base product within the scope of representative claim 7.
On this record, we shall sustain the Examiner’s obviousness rejection.
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