Appeal No. 95-0715
Application 07/936,942
unpatentable over Autant.5 Because we agree with the
examiner’s stated rejection and take notice of knowledge in
the prior art as evinced by Duchstein in doing so, we
denominate our affirmance of the examiner’s rejection as a new
ground of rejection under 37 CFR ' 1.196(b). Under the
provisions of this same rule, we also enter a new ground of
rejection of appealed claims 1 through 3, 5, 6 and 21 under 35
U.S.C. ' 102(b) as being anticipated by, and under 35 U.S.C. '
103 as being obvious over Duchstein. See, e.g., In re Spada,
911 F.2d 705, 708 n.2, 15 USPQ2d 1655, 1657 n.2 (Fed. Cir.
1990).
Rather than reiterate the respective positions advanced
by the examiner and appellant, we refer to the examiner’s
answer and to appellant’s brief for a complete exposition
thereof.
Opinion
We have carefully reviewed the record on this appeal and
based thereon find ourselves in agreement with the examiner
that the method as claimed in appealed claim 1 through 3, 5, 6
and 17 through 21 would have been obvious as a whole over
Autant in its entirety to one of ordinary skill in this art at
the time the claimed invention was made in view of the
knowledge in the art at that time as evinced by Duchstein.
The examiner contends that the appealed claims do not
limit the size of the animal feed nor its density and thus the
method of the appealed claims do not distinguish over Autant
which discloses the concept of providing a mixture of granules
and animal feed. However, we note that as a matter of claim
5 The examiner did not maintain on appeal the rejections
based on 35 U.S.C. 112, first and second paragraphs, set forth
in the final rejection.
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