Appeal No. 2006-2609 Page 3
Application No. 10/359,165
Thus, claim 1 is directed to an energy drink comprising particular amounts of a
carbohydrate, whey protein isolate, a stimulant, at least three different vitamins, and an
acidulant mixture of citric acid and phosphoric acid, which provides the composition with a
pH of about 2 to about 5.
2. Obviousness
The examiner has rejected claims 1-25 under 35 U.S.C. § 103 as obvious over
Weber1 in view of Liebrecht.2 The examiner argues that Weber “disclose[s] a beverage
containing carbohydrate, protein, a stimulant, and vitamins, which is consumed to
provide energy. . . . [A]bsent anything critical in the amounts, it would have been
obvious to use close to the claimed amounts of ingredients.” Examiner’s Answer,
page 3.
The examiner notes that Weber also discloses acidulants and “pHs within the
range of from 2 to 5.” Examiner’s Answer, page 6. The examiner argues that “it would
have been obvious to choose particular acids from known acids in particular amounts
for their known function.” Examiner’s Answer, page 4.
The examiner also notes that Weber states that the composition can also contain
milk base solids. The examiner argues that “no criticality is seen in the use of WPI
[whey protein isolate] since the specification discloses on page 6 that various proteins
can be used.” Examiner’s Answer, page 3. The examiner also cites Liebrecht as
disclosing “a protein containing liquid nutritional supplement that contains from 1 to 10%
whey protein isolate in a composition containing a carbohydrate which also has a pH
1 Weber et al., U.S. Patent No. 6,413,558 B1, issued July 2, 2002.
2 Liebrecht et al., U.S. Patent No. 5,641,531, issued January 24, 1997.
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