Appeal No. 2005-2436
Application No. 09/827,686
product. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655,
1658 (Fed. Cir. 1990); In re Best, 562 F.2d 1252, 1255, 195 USPQ
430, 433 (CCPA 1977). In the present case, the examiner has set
forth a rationale why it is reasonable to conclude that the
cabbage leaves of Finberg and Aebi have at least 30% intact cell
walls. Appellants, on the other hand, have failed to set forth
any argument, let alone objective evidence, that the processing
conditions of Finberg and Aebi would result in cabbage leaves
having less than 30% intact cell walls. As has often been said,
it is imminently fair to place such burden on an applicant
inasmuch as the USPTO is not equipped to test the products of the
prior art. While appellants may "bristle" at the conclusion
reached by the examiner, such analysis is in accordance with
current patent jurisprudence (page 8 of principal brief, last
paragraph). We do not understand appellants' argument that
nowhere does Aebi disclose that "the product should have anything
less than 100% intact cell walls" (page 9 of principal brief,
last full sentence), since 100% intact cell walls falls directly
within the claimed range and, therefore, anticipates the range.
As for the claimed moisture content of at or below 8% by
weight, the examiner points out that Finberg describes a water
content of about 5% by weight, whereas Aebi describes a final
-5-
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