Appeal No. 2007-4245
Application 09/489,310
The disclosed polyphosphates may be added to fruit juices such as
apple juice. Kohl 2:50-57.
There is no dispute that the fruit juices disclosed in Kohl, containing
the polyphosphates of the invention, are beverage compositions within the
scope of claim 23.
D. PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631,
2 USPQ2d 1051, 1053 (Fed. Cir. 1987).
To establish inherency, the extrinsic evidence “must make clear that
the missing descriptive matter is necessarily present in the thing described in
the reference, and that it would be so recognized by persons of ordinary
skill.” Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268, 20
USPQ2d 1746, 1749 (Fed. Cir. 1991).
Where the claimed and prior art products are identical or substantially
identical, the PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of the
claimed product. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433
(CCPA 1977).
One of ordinary skill in the art is presumed to have skills apart from
what the prior art references expressly disclose. See In re Sovish, 769 F.2d
738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985). A person of ordinary skill is
a person of ordinary creativity, not an automaton. KSR Int’l v. Teleflex Inc.,
127 S. Ct. 1727, 1742, 82 USPQ2d 1385, 1397.
E. ANALYSIS
Claim 23 originally read (Amendment dated July 3, 2002 at 1):
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