Appeal 2007-0726
Application 10/264,561
combined them in amounts selected to obtain their known predictable effects
on taste, texture, and expansion.
When the Examiner has shown that the combination of familiar
elements according to known methods yields no more than predictable
results, the combination is likely to be obvious. See KSR, 127 S. Ct at 1739,
82 USPQ at 1395. Appellants can overcome or rebut the rejection such as
by showing (1) that the references teach away from the combination, (2)
their improvement is more than the predictable use of these ingredients, or
(3) the application of the techniques involved was beyond the ordinary
artisan’s skill level. See KSR, 127 S. Ct. at 1740, 82 USPQ2d at 1395
(quoting Adams, 383 U.S. at 50-51, 148 USPQ at 483) (“when the prior art
teaches away from combining certain known elements, discovery of a
successful means of combining them is more likely to be nonobvious” and
“[t]he fact that the elements worked together in an unexpected and fruitful
manner supported the conclusion that Adams’s design was not obvious to
those skilled in the art.” (emphasis added)); and KSR, 127 S. Ct. at 1740, 82
USPQ2d at 1396 (“if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill.”).
Appellants contend that they are not using the known unmodified
pregelatinized waxy starch and raw potato starch ingredients for known
purposes (Reply Br. 5). Appellants proceed to describe the particular
purposes for which they use the ingredients (id.).
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