Appeal 2006-2315
Application 10/437,163
8) Gelfand notes that when organisms are allowed to propagate, they
will die causing the milk product to become putrid “as a result of the
multiplication of other putrifying organisms present.” (P. 1, ll. 21-22).
9) Gelfand teaches that the edible organic acid is, therefore, “of
sufficient hydrogen ion concentration to suppress further growth of the
organisms and their biological activities which have been introduced with
the cultured milk material, so that no further undesirable bacteriological
changes will take place in the product after it is placed on the market.”
(P. 1, l. 108 - P. 2, l. 3). See P. 2, ll. 44-51 (“hydrogen ion concentration
. . . is sufficient to substantially, if not entirely, arrest the further growth
and biological activity”).
PRINCIPLES OF LAW
1) The Examiner bears the initial burden of establishing a prima
facie case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532,
28 USPQ2d 1955, 1956 (Fed. Cir. 1993).
2) The Examiner must initially produce evidence sufficient to
support a ruling of obviousness; thereafter the burden shifts to the
applicant to come forward with evidence or argument in rebuttal.
In re Piasecki, 745 F.2d 1467, 1475, 223 USPQ 785, 788 (Fed.
Cir. 1984)..
3) Attorney arguments are not evidence. See C.R. Bard, Inc. v.
Advanced Cardiovascular Systems, 911 F.2d 670, 674 n.2,
15 USPQ2d 1540, 1544 n.2 (Fed. Cir. 1990).
4
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