Appeal No. 98-2667
Application No. 08/668,971
minutes. Example 5 does not include such drying conditions.
For these reasons, the declaration is not probative.
The rejection of claims 16-19 under 35 U.S.C. § 103(a),
as unpatentable over the combination of Madrazo and Mendoza is
affirmed.
The rejection over Heller
Claims 1-10 stand rejected under 35 U.S.C. § 103(a), as
being unpatentable over HELLER. (Examiner’s Answer, page 5).
We reverse.
Claim 1 is reproduced below:
1. A food product comprising a major portion of an
under or non-nixtamalized farinaceous component
and a minor portion of a nixtamalized component
having pronounced masa flavor.
Upon careful review of the record including the
respective positions advanced by appellant and the examiner,
we find ourselves in agreement with appellant that the
examiner has
failed to carry the burden of establishing a prima facie case
of obviousness. See In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d
10
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