Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 juice selected from the group consisting of “fruit juice and vegetable juice.”
2 There is no persuasive evidence in the record of commercial success as to
3 the entire second category, vegetable juice. Each of the listed items on the
4 product appears as a “Fruit Juice” or “Fruit Puree.”
5 Mr. Bean’s Declaration does seem to say that XanGo™ is made from
6 mangosteen fruit “in combination with juices from other vegetables,
7 including other fruit juices.” (Paragraph 5, lines 2-3). If Mr. Bean is
8 equating fruit with vegetable, then a good number of the dependent patent
9 claims directed specifically to “fruit” or “vegetable” do not further limit the
10 claims from which they depend (See, e.g. Claims 2, 4, 30, and 32). If Mr.
11 Bean is stating that one of the listed ingredients is a vegetable (in the sense
12 used in the specification and claims), then either he, the product ingredient
13 list upon which he is relying, or instant claim 3 which he prosecuted is in
14 error in listing each ingredient as a “Fruit Juice.”
15 In other words, we find that Mr. Bean appears to be glossing over the
16 inconsistency and lack of evidence relating to the vegetable juice half of the
17 claim. As a consequence the probative value of his Declaration is
18 significantly diminished.
19 Counsel for XanGo relies heavily upon Mr. Bean’s statements, noting
20 that:
21
22 “Mr. Bean, a chemical engineer and patent attorney serving as
23 the corporate counsel of XanGo and the prosecuting attorney of
24 the ‘333 patent, declared, under oath, and from his own
25 personal knowledge of XanGo™ Juice, that the commercial
26 product:
27 * includes pulp and pericarp from mangosteen whole
28 fruit;
28
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