Appeal No. 98-2667
Application No. 08/668,971
The examiner rejected claim 16 as obvious over the
combined teachings of Madrazo and Mendoza. According to the
examiner, Madrazo describes a process for nixtamalizing whole
grains. Mendoza describes a process for nixtamalizing corn
wherein the amount of alkaline solution varies dependent on
the corn. Thus, it would have been obvious for one skilled in
the art to determine the appropriate amount of alkaline
solution through routine experimentation. (Examiner’s Answer,
page 6).
Madrazo example 5 describes a process for nixtamalizing
corn in a closed vessel and adding calcium hydroxide in an
amount of 0.6 (parts/100 parts of corn). Example 5 differs
from claim 16 in that the amount of moisture described is 34%,
which exceeds the claimed range of 2% to 20%. Madrazo
discloses that the moisture content can vary within the range
of 5 to 35%. (Column 4, lines 12-14). A rejection is proper
when the difference between the claimed invention and the
prior art is a minor difference in the range or value of a
particular variable or when the ranges touch. In re Geisler,
116 F.3d 1465, 1469, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997).
Overlapping ranges are prima facie obvious. In re Woodruff,
919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In
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