Appeal 2006-2315
Application 10/437,163
1. An edible oil-in-water emulsion comprising from 30 to 75% wt oil,
water, live micro-organisms, and a preservation system, the emulsion having
an edible acid content in the aqueous continuous phase in the range of from
0.1 to 3% by weight and a pH at 20oC of not less than 4.0.
The Examiner relies on the following prior art references to show
unpatentability:
Gelfand US 1,697,312 Jan. 1, 1929
Lowe, "Experimental Cookery", 2nd Edition, John Wiley & Sons, Inc.,
269-271 (1937).
Jay, "Modern Food Microbiology," 2nd Edition, D. Van Nostrand Co. 253-
265 (1978).
McGee, "On Food and Cooking, Collier Books, MacMillaim Publishing Co.,
14 (1984).
The Examiner has rejected claims 1-17 under 35 U.S.C § 103(a) as
unpatentable over Gelfand as further evidenced by McGee, Lowe and Jay.
ISSUES
The Examiner contends that one of ordinary skill in the art at the time
of the invention would have understood Gelfand as disclosing the invention
as claimed in light of the teachings of the secondary references. Appellants
contend that Gelfand fails to disclose a product having live microorganisms.
Appellants further contend that the Examiner has not clearly established that
Gelfand uses an oil-in-water emulsion, the recited pH and edible acid
content of claim 1. The issue before is whether the Examiner has shown, by
2
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