Appeal 2007-2598
Application 10/378,330
(7) Igoe teaches that potassium lactate is a flavor enhancer used in
meat and poultry products, with properties as a humectant and pH
control agent (113-14).
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary considerations. See Graham v.
John Deere of Kansas City, 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966).
The analysis supporting obviousness should be made explicit and should
“identify a reason that would have prompted a person of ordinary skill in the
art to combine the elements” in the manner claimed. KSR Int’l Co. v.
Teleflex, Inc., 127 S. Ct. 1727, 1731, 82 USPQ2d 1385, 1389 (2007). “The
law is replete with cases in which the difference between the claimed
invention and the prior art is some range or other variable within the claims.
[Citations omitted]. These cases have consistently held that in such a
situation, the applicant must show that the particular range is critical,”
generally by showing unexpected results. In re Woodruff, 919 F.2d 1575,
1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990). Generally, if the prior art
discloses overlapping ranges with those claimed, at least a case of prima
facie obviousness is established. See In re Peterson, 315 F.3d 1325, 1329-
30, 65 USPQ2d 1379, 1382 (Fed. Cir. 2003). It is axiomatic that admitted
prior art in an applicant’s specification may be used in determining the
patentability of a claimed invention. See In re Nomiya, 509 F.2d 566, 570-
71, 184 USPQ 607, 611-12 (CCPA 1975). Consideration of the prior art
cited by the Examiner may include consideration of the admitted prior art
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