Appeal 2007-1678
Application 09/800,547
Appellants state that the combination of references does not
contemplate all the unexpected benefits achieved by their process, but they
provide no objective evidence in support of this argument (Br. 11).
Arguments in the Brief cannot take the place of evidence.
Turning to the rejection over Akashe in view of Ross, Appellants
contend that Akashe is directed to one possible ingredient in a dressing
composition, egg yolk, and is not directed to a starch-freee dressing as
claimed (Br. 12-13). Appellants’ contention overlooks the portion of the
reference relied upon by the Examiner, i.e., the portion disclosing the use of
the egg yolk ingredient in forming a starch-free mayonnaise. The reference
teaches the starch-free mayonnaise as required by claim 29 (FF 7-8).
Appellants further argue that there is no motivation to combine
Akashe with Ross (Br. 13). Appellants have not shown an error in the
rejection on this basis. Akashe describes using a rotor/stator device to
homogenize and further emulsify the mixture of mayonnaise ingredients (FF
9). Ross describes a known rotor/stator device for emulsifying (FF 6).
Appellants have not shown that the use of the Ross rotor/stator device as the
rotor/stator device of Akashe is more than the predictable use of a
conventional device for its established function. “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” See KSR Int’l v. Teleflex
Inc., 127 S. Ct. at 1739, 82 USPQ2d at 1395 (2007).
11
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