Appeal No. 2007-4245 Application 09/489,310 Claim 23, the only independent claim on appeal, reads as follows: A method of treating dental erosion comprising orally administering to a mammal in need thereof an effective amount of a beverage composition having a pH of less than about 5; wherein the beverage composition comprises a compound having the structure: wherein n is an integer averaging from about 7 to about 100 and M, M’, and M’’ are each, independently, selected from the group consisting of sodium and potassium, and wherein the beverage composition is substantially free of calcium and fluoride. B. ISSUE Claims 23-31 are rejected under 35 U.S.C. � 102(b) as being anticipated by Kohl.2 The sole issue on appeal is whether the phrase “in need thereof” in claim 23 defines over the prior art. C. FINDINGS OF FACT The following findings of fact are believed to be supported by a preponderance of the evidence. Additional findings of fact as necessary appear in the Analysis portion of the opinion. 1. Background of the invention Soft drink beverages, e.g., cola beverages, and fruit juice beverages have the potential to cause dental erosion in the consumer of the beverage. Appellant’s Specification 1:14-16. 2 U.S. Patent 3,681,091 issued to Kohl et al. on August 1, 1972. 2Page: Previous 1 2 3 4 5 6 7 8 Next
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