Appeal No. 96-3157 Page 17
Application 08/088,136
unwanted food items and is effectively avoiding certain
ingredients contained therein.
We agree with the appellant (brief, pp. 18-21) that
Madsen does not suggest the claimed invention. In that
regard, it is our view that the examiner's determination of
obviousness set forth above is a classic case of impermissible
hindsight since there is no factual evidence in the rejection
as to why one would have made the proposed modifications to
Madsen. In addition, we note that Madsen contains no
suggestion of loading the names of all ingredients used by the
restaurant into a database in a computer or inquiring of the
customer which ingredients the customer wishes to avoid.
For the reasons set forth above, the decision of the
examiner to reject claims 1, 2, 6, 8 to 12 and 19 to 21 under
35 U.S.C. § 103 is reversed.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1, 2, 6, 8 to 12 and 19 to 21 under 35 U.S.C. §§ 101,
103 and 112, second paragraph, is reversed; and the decision
of the examiner to reject claims 20 and 21 under 35 U.S.C. §
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