Appeal 2007-1213
Application 10/137,306
accord Glaxo Inc. v. Novopharm Ltd., 52 F.3d 1043, 1047, 34 USPQ2d
1565, 1567 (Fed. Cir. 1995). However, anticipation by a prior art reference
does not require that the reference recognize either the inventive concept of
the claimed subject matter or the inherent properties that may be possessed
by the prior art reference. See Verdegaal Bros., Inc. v. Union Oil Co.,
814 F.2d 628, 633, 2 USPQ2d 1051, 1054 (Fed. Cir.), cert. denied, 484 U.S.
827 (1987).
Claims 1 and 4 are argued as a group. We select claim 1 as the
representative claim on which we shall decide this appeal.
The issue presented for review with respect to these rejections is: Do
the Morris and Cameron references each have a disclosure that anticipates
the claimed subject matter? We answer this question in the affirmative.
The Rejection over Morris.
The Examiner finds that Morris discloses a canola protein isolate,
suitable for use in food composition, having a protein content in excess of
100 wt% as determined by Kjeldahl nitrogen N x 6.25 (Answer 3). Morris
discloses that the canola protein isolate is suitable for a variety of food
compositions (see unnumbered page 4).
Appellant has not disputed the Examiner’s factual findings. Appellant
acknowledges that Morris describes a canola protein isolate having a protein
content of 100 wt% as determined by Kjeldahl nitrogen x 6.25 that is
suitable for various food product compositions (Br. 4). However, Appellant
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