Appeal No. 2001-1002
Application No. 08/709,963
In support of their opposing view, the appellants present the
following argument on pages 11 and 12 of the brief:
Applicants respectfully submit that STALEY MIRA THIK
468, the modified starch used in Examples 1-3 of the
application, is a non-pregelatinized starch. Moreover, the
submitted literature on STALEY MIRA THIK 468 does indeed
indicate it is a non-pregelatinized starch. For example,
page 2, second paragraph, of the submitted literature states
that “MIRA-THIK starches provide . . . and less syneresis
than is found in typical pregelatinized starch.” Similarly,
on page 3, paragraph 4, it is stated that “MIRA-THIK 468
. . . significantly out performs pregelatinized starches.”
Based on these statements one of ordinary skill in the art,
reading this literature, would readily understand that MIRA-
THIK 468 is not a pregelatinized starch, i.e., it is a non-
pregelatinized starch.
On page 11 of the answer, the examiner advances two
fundamental reasons for regarding this argument as unpersuasive.
First, the file record is unclear as to whether the STALEY MIRA
THIK 468 starch which was used in specification examples 1-3
possesses the same characteristics as the STALEY MIRA THIK 468
starch which is described in the undated MIRA THIK literature
reference supplied by the appellants. Second, the statements in
this literature reference which the appellants interpret as
connoting a starch that is non-pregelatinized could also be
interpreted as connoting a starch that is pre-gelatinized. The
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