Appeal No. 95-0715
Application 07/936,942
nutrient granule to remain suspended in the feed composition
(specification, e.g., page 2).
The reference relied on by the examiner is:
Autant et al. (Autant) 4,876,097 Oct. 24, 1989
We have relied on Duchstein and further cite Kalmbach:4
Duchstein 4,310,552 Jan. 12, 1982
Kalmbach 5,629,038 May 13, 1997
The patent to appellant was called to our attention by
counsel at oral hearing. This patent issued from application
08/444,834, filed May 18, 1995, which according to appellant
is a continuation of application 08/077,018, filed Jun. 15,
1993, now abandoned, which is a division of the present
application. Patent claims 1 through 6, which are all of the
claims, are drawn to products which are used in the methods
claimed in the appealed claims of the present application. We
have reviewed the patent and find that upon citation of
Duchstein, the record in the present application is materially
different from the record in the application maturing into the
patent. Accordingly, the claims of this patent do not
constitute binding precedent in the case before us as to
whether these intermediates are nonobvious. In re Riddle, 438
F.2d 618, 169 USPQ 45 (CCPA 1971); see also In re Willis, 455
F.2d 1060, 1062-63, 172 USPQ 667, 669 (CCPA 1972); compare In
re Ochiai, 71 F.3d 1565, 1567-70, 37 USPQ2d 1127, 1129-1131
(Fed. Cir. 1995).
The examiner has rejected claims 1 through 3, 5, 6 and 17
through 21 on appeal under 35 U.S.C. ' 103 as being
4 We have made Duchstein and Kalmbach of record (PTO-892) and
provide a copy of Duchstein for appellant’s convenience.
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