Appeal No. 2006-2153
Application 10/447,199
On this record, we cannot subscribe to appellants’ position. Appellants have not
provided a citation to supporting disclosure in Warren ‘522 for the contention that the reference
requires sequestration of magnesium ions per se and we fail to find such disclosure. Indeed,
Warren ‘522 would not have disclosed that metal ion sequestrants are used for calcium ions (e.g.,
col. 3, ll. 19-52), and Chen would have taught that at most, only a small amount of metal
ion sequestrant is used in the preservative compositions “for best taste” purposes and not to
preserve the presence of calcium ions (e.g., col. 4, ll. 27-34).
In the absence of a teaching in the references that would have led one of ordinary skill in
the art away from using magnesium ions in the absence of a sequestration agent specifically
therefor, we agree with the examiner that this person would have reasonably combined the
teachings of Chen and Warren ‘522. This is because one of ordinary skill in the art routinely
following the combined teachings of these references would have reasonably modified the
preservative compositions of Chen by interchanging calcium ions used therein with magnesium
ions in the reasonable expectation of obtaining preservative compositions for fresh produce with
the same or similar properties in view of the teaching in Warren ‘522 that these alkaline earth
metal ions can both be used in preservative compositions containing the same antioxidant
ascorbate and/or erythorbate ions as Chen as the examiner points out. Thus, this person would
have reasonably arrived at the claimed method encompassed by appealed claim 1, including all
of the limitations thereof arranged as required therein, without recourse to appellants’
specification. That appellants may have used magnesium ions for purposes not expressly stated
by the references does not require a different determination. We fail to find in the brief any
argument based on evidence of objective indicia of non-obviousness in the record. See
generally, In re Kahn, 441 F.3d 977, 985-89, 78 USPQ2d 1329, 1334-38 (Fed. Cir. 2006); In re
Kemps, 97 F.3d 1427, 1429-30, 40 USPQ2d 1309, 1311 (Fed. Cir, 1996) (citing In re Dillon, 919
F.2d 688, 693, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (in banc)); In re Beattie, 974 F.2d 1309,
1312, 24 USPQ2d 1040, 1042 (Fed. Cir. 1992) (citing In re Kronig, 539 F.2d 1300, 1304,
190 USPQ 425, 428, (CCPA 1976); In re Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 563
(CCPA 1972)); In re Vaeck, 947 F.2d 488, 493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991) (citing
539 F.2d 1300, 1302-04, 190 USPQ 425, 426-28 (CCPA 1976).
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