Appeal No. 2007-4245
Application 09/489,310
The Jansen case does not require, as the Examiner
suggests that the person using the presently claimed beverage
be instructed to do so by, for example, a doctor. The Jansen
decision merely requires that the “need be appreciated”. In the
present case, it is notoriously well known that acidic beverages,
which include most colas, fruit flavored and fruit based
beverages, slowly erode tooth enamel. As such, the average
consumer of a cola product appreciates the need for enamel
erosion control.
The Appellant recognizes that the average consumer of an acidic
beverage, e.g., a cola product, appreciates the need for enamel erosion
control. Therefore, it is reasonable to find that the average consumer of the
acidic beverages of the prior art would also appreciate the need for enamel
erosion control and thus be “in need of” enamel erosion control as that
phrase is interpreted in Jansen.
Furthermore, setting Jansen aside and focusing on the inherency case
before us, we find that acidic beverages, such as colas and fruit juices, are
known to promote dental erosion. Therefore, we find that all individuals
with natural teeth who drink acidic beverages, such as the acidic beverages
of the prior art, are necessarily “in need of” protection from dental erosion.
We further find that drinking juice containing the polyphosphates disclosed
in Kohl would inherently treat dental erosion.
For the reasons set forth above, it is reasonable to find that the phrase
“in need thereof” does not define the invention of claim 23 over the prior art.
Claims 24-31 stand with claim 23.
F. DECISION
The rejection of claims 23-31 under 35 U.S.C. § 102(b) as being
anticipated by Kohl is affirmed.
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