Appeal 2006-2315
Application 10/437,163
ANALYSIS
Appellants argue that one of ordinary skill in the art would understand
Gelfand’s disclosure of suppressing further growth of the organisms and
their biological activities as a teaching that no live micro-organisms are
present in the finished product. Br. 9-10. The Examiner argues that one of
ordinary skill in the art would understand this language as meaning that
Gelfand retains the desirable microorganisms in a live state and controls
only the undesirable, proteolytic microorganisms. Answer 6. We find the
Examiner’s reading of Gelfand more plausible. Gelfand uses the term
“cultured.” The Examiner points out, and Appellants do not refute, that the
term “cultured” in connection with foods implies that the food contains live
microorganisms. Answer 6. Moreover, the broad recitation of “live micro-
organisms” in the appealed claims does not distinguish over Gelfand’s
teaching that at least some live microorganisms will likely remain in the
finished product. See Finding of Fact 9.
Appellants’ remaining arguments are likewise unpersuasive in
overcoming the Examiner’s obviousness rejection. In our view, the
Examiner has provided sufficient evidence to support a finding that one of
ordinary skill in the art would understand that the emulsion is oil-in-water
(i.e., McGee and Lowe) and that the amount of edible acid and pH of
Gelfand’s product would fall within the claimed ranges (i.e., Jay). See
Answer 4-5. Appellants have not directed us to any evidence which
establishes that the Examiner’s findings are incorrect.
5
Page: Previous 1 2 3 4 5 6 Next
Last modified: September 9, 2013