Appeal No. 2001-1002
Application No. 08/709,963
less of the thickening agent depending on the viscosity
desired. This is a result-effective variable that can
readily be determined by one skilled in the art depending on
the viscosity wanted for the composition.
According to the appellants, the examiner has provided no
evidence in support of her conclusion that the here claimed
thickening agent amount or concentration would have been obvious
to an artisan with ordinary skill. Indeed, the appellants argue
that Anderson’s concentration disclosure, especially his
disclosure of concentration preference, teaches away from
increasing patentee’s thickening or viscosifying agent
concentration to at least 2.5 percent as here claimed. Further,
the appellants argue that evidence of record including the Kim
declaration under 37 CFR § 1.132, filed February 11, 2000,
militates against the examiner’s obviousness conclusion.
As correctly indicated by the appellants, the examiner has
provided no evidence that thickening agent amounts or
concentrations of the type under consideration were known in
prior art browning compositions prior to the appellants’
invention. Rather, the examiner’s conclusion of obviousness is
based solely on the proposition that the concentration of
thickening agent in a browning composition “is a result-effective
variable that can readily be determined by one skilled in the art
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