Appeal 2007-1610
Application 10/955,833
The characterization of the synthetic mixture as being the “same” as
the naturally occurring mixture would be understood by persons of skill in
the art to mean that the profile of compounds in the mixtures are the same.
Thus, we do not find that this term introduced ambiguity into the claim.
Anticipation by Nielsen
Claims 7-9 stand rejected under 35 U.S.C. § 102 as anticipated by
Nielsen.
Nielsen describes the synthesis of ethyl 3-mercaptobutyrate (Nielsen,
at 408; Answer 11). The ethyl 3-mercaptobutyrate accumulates in a hexane
phase in the reaction vessel (Nielson, at 408; Answer 11). The Examiner
contends that “[s]ince hexane is an ingestible vehicle, in the broadest
reasonable interpretation of the term, when considered in light of the instant
specification, the Nielsen . . . reference is anticipatory. Hexane is capable of
being ingested, thus it is an ingestible material” (Answer 11).
Appellants contend that hexane is not an “ingestible vehicle” as would
be understood in the light of the Specification (Br. 7-8). “As set out in
appellant’s specification, ‘ingestible’ means to take in as food. Appellant’s
specification states that ‘[a]pplicant has discovered that ethyl 3-
mercaptobutyrate . . . possesses unexpected flavor properties and imparts a
unique note to flavors, especially for conferring in foodstuffs . . .’
Appellant’s specification at page 5, lines 27-31. (emphasis added)” (Br. 8).
Appellants provide evidence that hexane is “a toxic substance causing
central nervous system effects including dizziness, giddiness, nausea, and
headache” and therefore not ingestible as a food (Br. 7-8).
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