Appeal No. 2002-1103
Application No. 09/580,413
last paragraph in column 2). Thus, the Examiner’s apparent view of
Schumacher is not only arbitrary and capricious but incompatible
with patentee’s express teaching. Under these circumstances,
the viewpoint under consideration must be regarded as without
convincing merit.
Finally, the Examiner states that, “[a]s particularly, Fisher
teaches the use of butter with the water removed, which is one of
Appellant’s stabilizing product, it is not seen how the butter of
Fisher would not have the same amounts of fatty acids as claimed”
(supplemental answer, page 11). It is unclear how the Examiner
considers this statement to support her obviousness conclusion.
Nevertheless, it is our perception that the statement is
speculative on the Examiner’s part. While both the Appellant and
Fisher disclose peanut butter which contains processed butter, the
respective methods by which the Appellant and Fisher process the
butter are not identical (cf., the Appellant’s method on lines 16-
22 of specification page 13 and Fisher’s method on lines 43-47 of
column 1). For all we know, the temperatures of Fisher, which are
far above the Appellant’s butter-melting temperature, would render
the fatty acid content of patentee’s processed butter different
from that of the Appellant’s processed butter. Further, we observe
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