Appeal 2007-0211
Application 10/305,577
Moreover, although Izzo may not specifically describe the claimed
distribution of acidulant, as argued by Appellant at page 11 of the Brief, it is
well settled that where patentability is predicated upon a change in a
condition of a prior art composition, such as a change in concentration or the
like, the burden is on the applicant to establish with objective evidence that
the change is critical, i.e., it leads to a new, unexpected result. In re
Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In
re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In the
present case, Appellant has proffered no objective evidence that w/o/w
emulsions within the broad scope of the appealed claims, having only
slightly more acidulant in the primary phase than the aqueous phase,
produce unexpected results with respect to stability, sour taste, or any other
property. Appellant provides no comparison between emulsions within the
scope of the appealed claims and emulsions fairly taught by Izzo. Indeed,
the present specification characterizes the present invention as “a w/o/w
emulsion wherein at least about 50 % by weight of the total acidulant
utilized in the w/o/w emulsion is present in the primary phase” (Spec. 2, last
sentence). Also, the Specification relates that “[i]n yet another preferred
embodiment, the concentration of free hydrogen for the acid employed is
greater in the external aqueous phase” (Spec. 7, last ¶, emphasis added). In
addition, Examples 1 and 2 of the Specification have more acid in the
external phase (6.4 weight % vinegar) than in the primary phase (2.0 weight
% vinegar). Hence, the Specification would seem to allay any suggestion
regarding the criticality of having more acidulant in the primary phase,
particularly the slight excess of acidulant encompassed by the appealed
claims.
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Last modified: November 3, 2007