Appeal No. 95-2441
Application 07/987,211
The examiner has the initial burden to establish a prima
facie case of unpatentability under 35 U.S.C. § 103. In re
Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.
1988). The case for unpatentability of the invention of Claim
26 under section 103 has not been adequately explained by the
examiner. Faced with his initial burden, the examiner merely
states
(Ans., pp. 7-8):
The applicant then argues that none of the cited
documents disclose the use of 70% choline chloride on a
cereal carrier as specified in Claim 26. While Iijima
et al. does not incorporate cereals into their
composition
they acknowledge the fact that cholines are adsorbed on
powdered carriers such as corn cob meal but are not used
in ruminants since they would “decompose in the rumen”
(col. 1, lines 25 to 33.) It would have been obvious to
one of ordinary skill in the art to coat a choline
chloride/
cereal composition with a hydrophobic coating since the
subject of the patent is coating compositions to protect
them from decomposing in the rumen.
The above statement is the totality of the examiner’s effort
to support the rejection. We are at a loss to understand why
the prior art reasonably would have suggested the invention of
Claim 26 in view of Iijima’s teaching. Iijima teaches that
liquid choline or liquid choline absorbed on 50% corn cob meal
eliminates problems associated with deliquescent crystalline
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