Appeal No. 2006-2604 Page 5
Application No. 10/253,066
the form of an encapsulate,” and that “[e]ncapsulation may be employed when a delay
in cooling perception is desired.” Page 8, lines 28-31.
Rowsell teaches a genus of “acyclic tertiary and secondary carboxamides”
(abstract) that “hav[e] a physiological cooling effect on the skin and on the mucous
membranes of the body, particularly the mucous membranes of the nose and bronchial
tract.” Col. 1, lines 8-11. Rowsell teaches that the disclosed carboxamides can be
used in chewing gum (col. 3, line 66) and that the amount used in edible compositions
“will generally be in the range 0.1 to 2.5% by weight” (col. 6, lines 9-10).
Song teaches a method of encapsulating an agent for gradual release in chewing
gum. Col. 1, lines 5-13. The method is said to be applicable to a variety of agents,
including menthol. Col. 4, lines 13-32. The method comprises mixing the agent with a
“wall material” and extruding the mixture into a fiber. Col. 1, lines 44-49. “The wall
material can be any spinnable synthetic or natur[al] polymer such as polyethylene,
polyvinylacetate, polyesters, [or] chitosan.” Col. 4, lines 37-40.
Based on these teachings, it would have been obvious to a person of ordinary
skill in the art to encapsulate the acyclic carboxamide taught by Rowsell, using the
method disclosed by Song, and to include the encapsulated carboxamide in a chewing
gum formulation as taught by Luo. Motivation to do so is provided by Luo’s teaching
that an encapsulated carboxamide provides a chewing gum with a delayed release
cooling composition.
Appellants argue that the references do not provide adequate motivation to
combine their teachings because “Luo does not teach anything with respect to acyclic
carboxamides . . . [or] the extrusion method required by claim 1” (Appeal Brief, page 5);
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