Ex parte HAYNES et al. - Page 8




                 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