Appeal No. 2006-2609 Page 8
Application No. 10/359,165
18, lines 25-28. Thus, the evidence shows that those skilled in the art would have
expected low pH to inhibit growth of microorganisms.
Dr. Kent also declared that “whey protein isolate minimizes or prevents
sedimentation of the proteins at the low pH of the compositions compared to higher
sedimentation that tends to occur when an equal amount of another protein source is
used.” ¶ 6.
The declaration, however, presents no basis for concluding that this property
would have been unexpected. “[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with the
closest prior art.” In re Baxter-Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281,
1285 (Fed. Cir. 1991). Based on the general statement provided, it cannot be
determined whether the Declaration is referring to a comparison between the
composition of claim 1 and the closest prior art, specifically a composition of Weber that
contains milk base solids.
Moreover, Dr. Kent states that “[t]he extra fat and lactose from the whey protein
concentrates and milk base solids . . . would tend to result in . . . significantly more
sedimentation at the low pH of the energy drink compositions than would be obtained
with the claimed whey protein isolate.” Kent Declaration, ¶ 10. Thus, the declaration
itself suggests that the known properties of whey protein isolate would have been
expected to cause less sedimentation compared to milk base solids.
Finally, Dr. Kent declared that whey protein isolate “provides a more consistent
protein source, as well as a more concentrated source of branched chain amino acids,
compared to what is provided by an equal amount of whey protein concentrates or milk
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007