Appeal No. 94-2895
Application 07/908,728
Finally, as a matter of clarification, we observe that the appellants have presented
arguments relating to a yield stress range limitation which is required by certain of the
claims on appeal. None of the claims here under review, however, require this feature. At
most, claim 65 simply requires that the composition defined thereby be capable of
exhibiting such a yield stress range when subjected to dispersion and fragmentation under
certain conditions. Because the composition of claim 65 is not otherwise distinguishable
as argued by the appellants from the composition of Lenchin, it is again appropriate to
believe that patentee’s composition necessarily and inherently possesses the capabilities
of the claim 65 composition and to require that the appellants prove otherwise. In re Best,
id.
In summary, the here claimed compositions appear to be identical to the
compositions of the applied prior art, specifically, the granular starch hydrolysates of
Lenchin, and the appellants have not carried their burden of showing otherwise. We shall,
therefore, sustain the examiner’s § 103 rejection of composition claims 26 through 30 and
62 through 65.
The rejection of claims 1, 2, 31 through 61, and 66 through 104
Notwithstanding the generality of the examiner’s aforequoted obviousness
conclusion, it is her basic position that it would have been obvious for one with ordinary
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