Appeal No. 2006-2609 Page 10
Application No. 10/359,165
these examples do not demonstrate that compositions containing whey protein isolate
are superior to compositions containing other milk protein sources.
In sum, Appellant has not presented evidence of unexpectedly superior results to
overcome the examiner’s prima facie case of obviousness.
Appellant also argues that Weber “fails to disclose or suggest an acidulant mix of
citric acid at about 0.1% to about 0.5% and phosphoric acid at about 0.01% to about
0.05% by weight of the composition” and that Liebrecht “also fails to disclose or suggest
specific ingredient mixture levels for the acids.” Appeal Brief, page 15. In particular,
Appellant argues that the claimed acid levels are not “optimum values of result effective
variables” because many acids can accomplish the required pH, “citric acid is generally
considered a fruit acid, thus having limited applicability in the beverage industry,” and
“there are no optimal acid levels for a ready-to-drink beverage.” Appeal Brief, pages 15-
16.
We conclude that the examiner has set forth a prima facie case that it would
have been obvious to include 0.1% to 0.5% by weight citric acid and 0.01% to 0.05% by
weight phosphoric acid, in order to adjust the pH of the composition to pH 2 to 5.
Weber discloses that the composition “may optionally comprise one or more
acidulants . . . 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.” Col. 18, lines 15-20.
In addition, Liebrecht describes adding acid to bring the pH within the range of from
about 2.8 to about 3.3. Col. 4, lines 43-46. Thus, we conclude that the examiner has
set forth a prima facie case that it would have been obvious to include one or more
acidulants to provide a pH of from about 2 to about 5.
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