Appeal No. 2006-2609 Page 2
Application No. 10/359,165
The specification also states that the composition may further comprise “[a]n
amount of an acidulant . . . to maintain the pH of the composition,” which preferably has
“a pH of from about 2 to about 8, more preferably from about 2 to about 5.” Page 10.
“The most preferred acids are citric and phosphoric acids. Preferably, citric acid and
phosphoric acid are present in the amount of from about 0.1% to about 0.5% and from
about 0.01% to about 0.05%, respectively.” Id.
Discussion
1. Claim construction
Claims 1-25 are pending and on appeal. The claims have not been separately
argued and therefore stand or fall together. We will focus on claim 1, the broadest claim
on appeal, which reads as follows:
1. An energy drink composition, comprising:
a carbohydrate in an amount of above 16% to about 20% by weight of
composition;
whey protein isolate in an amount of from about 0.1% to about 1.5% by weight of
the composition;
a stimulant in an amount of from about 0.1% to about 1.5% by weight of the
composition; and
a vitamin premix in a vitamin fortifying amount and which includes at least three
different vitamins,
an acidulant mixture of citric acid and phosphoric acid present in the amount of
from about 0.1% to about 0.5% and from about 0.01% to about 0.05%, respectively, by
weight of the composition to provide a pH of about 2 to about 5, and the energy drink
when consumed by a person provides energy, stimulation, and nutrition.
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