Appeal 2006-1584
Application 10/139,118
We conclude that, on this record, the Examiner has not established a
prima facie case of obviousness with respect to claims 11, 12, and 17.
However, we note that Bialek discloses a step of homogenizing an
emulsion before adding acid to form a food dressing. We, therefore, remand
this Application to the Examiner to consider whether an obviousness
rejection based on the combination of Wander and Bialek, along with any
other relevant evidence, should be applied to claims 1, 10, and other claims
dependent thereon. The relevant question is whether one of ordinary skill in
the art would have found it obvious to have homogenized the emulsion of
Wander before acidification based on the evidence in Bialek that similar
emulsions were homogenized before acidifying.
CONCLUSION
In summary, we sustain the Examiner’s rejection of claims 1-9 and 15,
but do not sustain the rejection of claims 10-14, 16, and 17. We further
remand the Application to the Examiner for consideration of a rejection.
Therefore, we AFFIRM-IN-PART and REMAND.
In addition to affirming the Examiner's rejection of one or more claims,
this decision contains a remand. 37 C.F.R. ' 41.50(e) (2005) provides that
“[w]henever a decision of the Board includes a remand, that decision shall not
be considered final for judicial review. When appropriate, upon conclusion of
proceedings on remand before the examiner, the Board may enter an order
otherwise making its decision final for judicial review.”
Regarding any affirmed rejection, 37 CFR ' 41.52(a)(1) provides
"[a]ppellant may file a single request for rehearing within two months from
the date of the original decision of the Board." The effective date of the
affirmance is deferred until conclusion of the proceedings before the
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