Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 It appears that this argument is based on the Appellants’ quotation of
2 the same paragraph in the Final Rejection discussed above. As noted, that
3 paragraph was directed to addressing the Appellant’s arguments and did not
4 restate the then pending rejection. The Appellants are either ignoring or are
5 not cognizant of the text of the rejection in the December 6, 2004 rejection.
6 We have found above that the rejection is based on facts of record in
7 this proceeding, supported by the evidence of the multiple cited references.
8 We see no instances of the Examiner taking “official notice” of facts
9 unsupported in the record.
10 Accordingly, this argument is unpersuasive as well.
11 Hindsight
12 The Appellant urges that the rejection is based on hindsight. More
13 specifically, the Appellant urges that the Examiner followed the suggestion
14 of the third-party requester and
15 [U]sed the ‘333 patent specification as a template to pick and
16 choose, from the many ingredients listed in the cited references,
17 certain ingredients, such as mangosteen pericarp, mangosteen
18 pulp, and other fruit or vegetable juices, and then combine them
19 together in accordance with the teaching of the ‘333 patent.
20 (Br. p. 23, ll. 1-4).
21 We also find this argument unpersuasive.
22 First, two of the three ingredients were known to be combined in a
23 beverage in Example 6 of JP ‘442.
24 Second, the only difference between the prior art and the claimed
25 invention of claim 1 was the addition of a known fruit juice with a known
26 superior taste, added for flavor. The references of record indicate that a
18
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