Appeal No. 95-4890
Application 08/035,002
column 1, lines 59 through 62. In this manner, a person
having ordinary skill in the art would have arrived at the
subject matter sought to be patented in claim 12 including a
percent by weight of insoluble protein at the lower end of the
range recited therein (0.5%). In this regard, the motivation
to modify a prior art reference to arrive at the claimed
subject matter does not have to be identical to that of
applicants to establish obviousness. See In re Kemps, 97 F.3d
1427, 1430, 40 USPQ2d 1309, 1311 (Fed. Cir. 1996).
For these reasons, we affirm the examiner’s decision
rejecting claim 12 under 35 USC § 103. As previously
indicated, claims 2 through 9 fall together with claim 12.
CLAIM 11
As stated in the Brief before the Board, page 3, section
V, claim 11 stands alone. Further, at pages 7 and 8 of the
Brief, applicants argue claim 11 separately. Accordingly, for
the purposes of this appeal, we have treated claim 11
separately.3
3 In the Examiner’s Answer, page 2, Section (5), the examiner states that all of
the appealed claims are presumed to stand or fall together because applicants fail to
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007