Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 person of ordinary skill in the art, at a minimum, would have some practical
2 experience in formulating nutraceutical beverages for medicinal content and
3 flavor. (See, e.g. JP ‘442, example 6).
4 The art of record supports a finding of a teaching, suggestion, or
5 motivation to combine the references.
6 In particular, the record supports a finding that Appellants’ have done
7 no more than combine known elements in a known manner for the purpose
8 of achieving a predictable result, the formation of a fruit juice blend having
9 nutraceutical properties. KSR at 1739, 82 USQP2d at 1395.
10 Lack of a Reasonable Expectation of Success
11 The Appellant urges that it was known that the mangosteen pericarp
12 was bitter, tough, and astringent, and one of ordinary skill in the art would
13 have known to keep the pericarp separate from the fruit pulp. Accordingly,
14 it is urged that a person of ordinary skill in the art, being aware of these
15 teachings, would have no reasonable expectation of success of a
16 nutraceutical beverage containing mangosteen pericarp. (Br. p. 24, ll. 5-15).
17 As the evidence of record indicates that beverages had been prepared
18 in the prior art containing mangosteen pericarp (See, e.g. JP 442, example
19 6), and the Appellant has put forth no persuasive evidence to the contrary,
20 we find that this argument is without persuasive merit.
21 Failure to Show All the Claim Limitations
22 The Appellant urges that the Examiner “did not differentiate among
23 the 81 separate claims,” “failed to differentiate among the seven cited
24 references,” “failed to distinguish a primary reference and secondary
19
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