Appeal No. 2006-2609 Page 5
Application No. 10/359,165
Appellant argues that Weber is directed to a food and beverage composition
comprising a mixture of carbohydrates and water, which can also include various
optional components, but that Weber does not describe a composition containing whey
protein isolate. “In fact, the only protein mentioned or suggested is milk base solids.”
Appeal Brief, page 11 (emphasis in original). In addition, Appellant argues that Weber
“uses the whole portion of milk, whether in dry, fermented or liquid form. Weber fails to
teach or suggest using an extracted protein from milk or even any individually
extracted/purified/isolated components from milk.” Reply Brief, page 2 (emphasis in
original).
Appellant argues that Liebrecht is directed to a nutritional composition that is
devoid of fat. “In fact, Liebrecht explicitly teaches away from using ‘milky’ or milk-based
products.” Appeal Brief, page 12 (emphasis in original). “Because Liebrecht
intentionally teaches a clear composition devoid of a milk-based product or fat as an
alternative to milk-based supplements, it teaches away from Weber’s product if the
optional milk-base solid was to be added to it.” Id. (emphasis added). In particular,
Appellant argues that “one having ordinary skill in the art would not use milk as a
substitute ingredient for WPI. WPI, which is a pure, natural, high quality protein that
contains little to no fat, lactose or cholesterol, has distinctive qualities compared to a
composition such as milk, which contains a mixture of various nutritional ingredients
along with fat, lactose and cholesterol.” Reply Brief, pages 2-3.
Appellant argues that, because Weber teaches the use of milk-based products
and Liebrecht is directed to a composition devoid of milk-based products, “one skilled in
the art would not be motivated to modify or combine the cited references to arrive at the
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