Appeal No. 95-2416
Application 07/892,484
We recognize that the examiner’s rejection is based on § 103
of the statute. However, a complete description in the prior art
of the claimed invention is the ultimate of obviousness.
Accordingly, we affirm the examiner’s rejection as to appealed
claims 1 through 5, 7, 9, 16, 17 and 21.
Composition claim 23 and method claims 20 and 24 stand on a
different footing, however. Composition claim 23 requires a
treated birdseed comprised of the “whole seed” from the group
consisting of, inter alia, wheat. Wheat bran, of course, is not
a whole seed as required by composition claim 23. We recognize,
as pointed out by the examiner, that Cartwright indicates that
his “poultry-powder” supplement is to be mixed with the regular
poultry food which typically includes whole seed grain.
Appellant points out, however, that when Cartwright’s supplement
is added to the regular food fed to the poultry that the amount
of capsaicin in this combined feed is outside the scope of
appellant’s claimed range. Appellant has supported this argument
with specific detailed calculations present in the record in the3
amendment filed February 3, 1993 and reiterated in the Brief at
page 4 and the Reply Brief at page 2. The examiner has not
3There are no calculations of record that the “poultry-
powder” supplement of Cartwright contains capsaicin in an amount
outside the scope of appellant’s claims.
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