Appeal No. 2002-0866
Application No. 09/262,471
and
3) Whether the appellants have demonstrated that the tests
utilized to prove an unexpectedly superior flavor in the showing
are well accepted in the art (standard in the food industry).
The examiner must keep in mind that the burden of showing
unexpected results rests on the appellants. In re Freeman, 474
F.2d 1318, 1324, 177 USPQ 139, 143 (CCPA 1973); In re Klosak, 455
F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
CONCLUSION
In view of the foregoing, we reverse the examiner’s
aforementioned Sections 102 and 103 rejections and remand the
application to the examiner for appropriate action consistent
with the views expressed supra.
REQUIREMENTS
This application, by virtue of its “special” status,
requires immediate action on part of the examiner. See MPEP
§ 708.01(D)(8th Ed., Aug. 2001). It is important that the
1979)(“The evidence presented to rebut a prima facie case of obviousness must
be commensurate in scope with the claims to which it pertains.”).
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