Appeal No. 2006-2609 Page 4
Application No. 10/359,165
within the claimed range (abstract). Therefore, it would have been obvious to substitute
the WPI in amounts within the claimed range for the protein in Weber, because
Liebrecht et al. disclose that it is known to use WPI in acid conditions, and also since
the specification does not show any criticality in the use of a particular type of protein.”
Examiner’s Answer, pages 3-4.
We conclude that the examiner has adequately shown that one of ordinary skill in
the art would have been motivated to combine Weber with Liebrecht. Weber describes
a beverage composition comprising a carbohydrate (col. 1, lines 56-65), a stimulant
(col. 8, lines 15-34), more than three different vitamins (col. 13, lines 1-40), and an
acidulant that provides a pH of about 2 to about 5 (col. 18, lines 15-20). As noted by the
examiner, Weber states that the composition may optionally comprise one or more milk
base solids. Col. 11, lines 19-39.
Liebrecht describes a beverage composition comprising carbohydrate, vitamins,
and whey protein isolate, and having a pH of about 2.8 to about 3.3. Col. 2, lines 43-54.
Liebrecht states that its composition “is essentially devoid of added fat.” Col. 3,
lines 61-64. Liebrecht describes its composition as “a non-milk tasting alternative to the
mostly milk-based supplements currently available.” Col. 1, lines 24-27. Liebrecht
states that, unlike milk tasting products, its composition “provides a clear oral nutritional
supplement which has a juice like consistency and flavor.” Col. 2, lines 20-22. We
agree with the examiner that one of ordinary skill in the art would have found it obvious
to substitute whey protein isolate for the milk base solids in the composition of Weber in
order to provide a non-milk tasting energy drink that includes protein.
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