Appeal 2007-2598
Application 10/378,330
found in an applicant’s specification. See In re Davis, 305 F.2d 501, 503,
134 USPQ 256, 258 (CCPA 1962); cf., In re Hedges, 783 F.2d 1038, 1039-
40, 228 USPQ 685, 686 (Fed. Cir. 1986).
Applying the preceding legal principles to the factual findings in the
record of this appeal, we determine that the Examiner has established a
prima facie case of obviousness, which prima facie case has not been
adequately rebutted by Appellants’ arguments. As shown by factual finding
(1) listed above, and not disputed by Appellants, we determine that King
discloses every limitation of claim 1 on appeal with the exception of the
soluble potassium ion source (see Answer 4). As shown by factual finding
(4) listed above, we determine that King teaches that other additives may be
included in the antimicrobial composition, including other antimicrobial
agents and flavors. As shown by factual finding (6) listed above, we
determine that Igoe teaches that it was known in the food art to use
potassium sorbate as a preservative or antimicrobial agent in typical amounts
of 0.025 to 0.10%.1 As shown by factual finding (7) listed above, we
determine that Igoe also teaches that the use of potassium lactate as a
humectant, flavor enhancer, and pH control, was well known in the food art.
We determine that King provides sufficient reasoning to add potassium
sorbate as another antimicrobial agent, as taught by Igoe. We also
determine, for the claims requiring potassium lactate, that King provides
sufficient reasoning to add potassium lactate as a flavor enhancer, as taught
by Igoe. We further determine that the Examiner has identified other
reasons for adding potassium lactate to the antimicrobial composition
1 We note that only claims 4, 7, 16, 19, and 29 require that the soluble
potassium ion source is potassium lactate.
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