Appeal 2007-0726
Application 10/264,561
Appellants’ reasons for adding these starches is not alone enough to rebut
the case of obviousness. In re Kemps, 97 F.3d 1427, 1430, 40 USPQ2d
1309, 1311 (Fed. Cir. 1996) (“the motivation in the prior art to combine the
references does not have to be identical to that of the applicant to establish
obviousness.”). What Appellants must do is show that the results of adding
unmodified pregelatinized waxy starch and raw potato starch were not
predictable, i.e., the results would have been unexpected to one of ordinary
skill in the art. Appellants advance no convincing objective evidence of
unexpected results.
Appellants further contend that Chino and Mochizuki “teach away”
from the combination. We do not agree that the references “teach away” in
the sense that there is no prima facie case of obviousness. “In general, a
reference will teach away if it suggests that the line of development flowing
from the reference's disclosure is unlikely to be productive of the result
sought by the applicant.” In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130,
1131 (Fed. Cir. 1994). For instance, a reference will teach away if it leaves
the impression that the product would not have the property sought by the
applicant. Gurley, 27 F.3d at 552-53, 31 USPQ2d at 1131-32. Neither
Chino nor Mochizuki teaches that a coated edible core cannot be obtained
when including pregelatinized waxy starch and raw potato starch along with
flour in the dry coating mixture or that such a mixture is undesirable. The
references taken as a whole simply teach that continuous processing
(Lanner) may be more efficient than batch processing (Mochizuki) and that
using a mold during expansion can sometimes make it easier to control
shape, texture, and hardness (Chino) (FF 10-12). That there are some
alternatives for some aspects of the processing is not a teaching away from
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