Appeal 2007-1610
Application 10/955,833
“naturally occurring mixture of compounds” to mean a “mixture of
compounds” that can be found in nature.
Ethyl 3-mercaptobutyrate was identified by the inventors as a
flavorant present in the “complex mixture” of components that naturally
occur in mango (Spec. 2: 21-27 and 5: 33 to 6:12). In this context, we
interpret “provided that the ethyl 3-mercaptobutyrate is not part of a
naturally occurring mixture of compounds” to mean that the
mercaptobutyrate compound is not present in the claimed composition in the
same complex form in which it would occur in nature.
We have considered, but reject, the Examiner’s alternative
interpretation (Answer 6-7). As we understand it, the Examiner interprets
“naturally occurring mixture of compounds” phrase to mean “a mixture of
naturally occurring compounds.” In our opinion, the Examiner improperly
interpreted “naturally occurring” to describe the compounds present in the
mixture, rather than the entire mixture, itself.
The term “ingestible” as recited in claim 7 is also at issue in this
proceeding. The Specification states the ethyl 3-mercaptobuyrate is useful
for imparting a unique flavor to foodstuffs (Spec. 5: 33-35). It is described
as useful “in a wide variety of ingestible vehicles” that include gum,
confectionary products, and beverages (Spec. 8: 7-14). The term
“ingestible” is also defined in the Specification to mean “all materials and
compositions which are used by or which perform a function in the body”
(Spec. 6: 17-21). Thus, we interpret the phrases “ingestible composition”
and “ingestible vehicle” as recited in claim 7 to mean materials and
compositions suitable as foods.
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