Appeal No. 95-0715
Application 07/936,942
Accordingly, it reasonably appears to us from
consideration of the teachings of Duchstein that the nutrient
charged perlite granules of an average particle size which
avoids separation when mixed with meal for feeding animals as
disclosed therein are identical or substantially identical to
the nutrient charged granules of the same or similar size for
the same purpose as encompassed by appealed claims 1 through
3, 5, 6 and 21. Thus, the burden falls upon appellant to
establish by objective evidence that the claimed invention
patentably distinguishes over this reference, whether the
rejection is considered to be based on 35 U.S.C. ' 102 or 35
U.S.C. ' 103. See Spada, 911 F.2d at 708-09, 15 USPQ2d at
1657-58; In re Best, 562 F.2d 1252, 1255-56, 195 USPQ 430,
433-34 (CCPA 1977).
In summary, we denominate our affirmance of the
examiner’s rejection of appealed claims 1 through 3,5, 6 and
17 through 21 under 35 U.S.C. ' 103 as being unpatentable over
Autant as a new ground of rejection under 37 CFR ' 1.196(b)
because we rely on Duchstein in sustaining this rejection. We
have set forth 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 under the provisions of 37 CFR ' 1.196(b).
The examiner’s decision is affirmed.
Any request for reconsideration or modification of this
decision by the Board of Patent Appeals and Interferences
based upon the same record must be filed within one month from
the date hereof. 37 CFR ' 1.197.
With respect to the new rejection under 37 CFR '
1.196(b), should appellant elect the alternate option under
that rule to prosecute further before the Primary Examiner by
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