Appeal No. 94-2861
Application 08/013,537
discloses an alkyl ester of undecylenic acid as an additive for
foodstuffs, describes the claimed subject matter within the
meaning of 35 U.S.C. § 102. It is well settled that anticipation
is the epitome of obviousness.
We will not sustain the examiner’s rejection of claims 3, 4,
14 and 15, which define the deodorant as a polyoxyethylene, a
polyoxypropylene or a poly(oxyethylene)/(oxypropylene) ester of
undecylenic acid. The examiner has cited no prior art evidence
that such polyoxyalkyl esters of undecylenic acid are known as
odorants or flavorants for food compositions. In the absence of
such prior art, the examiner has failed to provide factual
support for the conclusion of obviousness. Accordingly, we are
constrained to reverse the examiner’s rejection of claims 3, 4,
14 and 15.
In conclusion, based on the foregoing, the examiner’s
rejection of claims 1, 2, 5-13 and 16-20 is affirmed. The
examiner’s rejection of claims 3, 4, 14 and 15 is reversed. The
examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connec-
tion with this appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART
EDWARD C. KIMLIN )
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