Appeal No. 98-2667
Application No. 08/668,971
re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA
1974).
It is noted that Madrazo does not describe the
nixtamalized farinaceous composition as having a “pronounced
masa flavor.” However, the reaction conditions of Madrazo fall
within the parameters set forth on page 4, lines 8 to 16 of
appellant’s specification. (See Madrazo, columns 3 and 4).
Appellant argues that Madrazo uses 35% water which is
outside the critical range of 2% to 20%. (Brief, page 7). As
stated above, Madrazo, at column 4, lines 12-14, discloses
that the moisture content in the process can vary within the
range of 5 to 35%. Consequently, one of ordinary skill in the
art would have a reasonable basis for lowering the moisture
of example 5 below 20%.
The declaration of June 2, 1997 does not present evidence
that the process of Madrazo produces compositions containing
at least partially ungelatinized corn starch. The experiment
representative of Madrazo’s example 5 was not performed as
described in the reference. For example, the moisture content
of example 5 was indicated to be 34% whereas the declaration
maintained a moisture content of 11%. The declaration dried
the nixtamalized corn at a temperature of 400 F for 20o
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