Appeal No. 2006-2153
Application 10/447,199
nonobviousness based on the record as a whole, giving due consideration to the weight of
appellants’ arguments in the brief and reply brief. See generally, In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ
785, 788 (Fed. Cir. 1984).
We agree with the examiner’s findings of fact from the references and conclusions of law
based on this substantial evidence as set forth in the answer, to which we add the following for
emphasis.
There is no dispute that the claimed method differs from the method of Chen solely in
that the reference would have disclosed to one of ordinary skill in this art a method in which the
preservative compositions for fresh produce contain ascorbate and/or erythorbate ions and
calcium ions, the latter obtained from, among others, calcium chloride, but not magnesium ions;
and that Warren ‘522 would have disclosed to this person that preservative compositions for
fresh produce contain ascorbate and/or erythorbate ions and chloride ions, the latter obtained
from, among others salts, calcium chloride and/or magnesium chloride which would provide the
alkaline earth metal ions calcium and/or magnesium to the composition.
Appellants submit that one of ordinary skill in this art would not have combined the
teachings of Chen and Warren ‘522 as applied by the examiner because Chen would have taught
the presence of the calcium ion only, and Warren ‘522 would have required that “incidental
magnesium must be sequestered by an additional additive to prevent food degradation” (brief,
page 7; see also page 4). Thus, appellants would have us hold that “[o]nly by reading applicant’s
[sic] specification would one appreciate that magnesium ion [sic] as a preservative with ascorbic
acid” (brief, page 7; see also page 5). The examine responds that Warren ‘522 would have
taught “using either calcium or magnesium in a vegetable preservative composition” and thus,
would have led one of ordinary skill in this art to use magnesium ions in place of calcium ions in
the preservative composition of Chen in view of the use of ascorbate or erythorbate ions in the
preservative compositions for fresh produce of both references and that calcium and magnesium
are both alkaline earth metals ions which would have been expected to perform in the same or
similar manner with the same composition components (answer, e.g., pages 6-7).
matured. Thus, a discussion of Warren ‘313 is not necessary to our decision. See In re Kronig,
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