Appeal No. 95-2971
Application No. 07/742,260
The examiner has relied upon Fukuda stating (Answer, page 9):
Fukuda discloses a konjac mannan purified to a degree so that the
nitrogenous component originating in the konjac tuber is not more than 0.2%.
However, at page 1, last paragraph of the translation, Fukuda describes the konjac of the
reference as being "resistant to melting by heat and dissolution in hot water." (Emphasis
added). In addition, Fukuda makes no mention of the presence or absence of insoluble
impurities. This compares to claim 1 which calls for a clarified konjac "substantially free of
insoluble impurities" and "readily dissolves in water." The examiner relies on the
remaining references as disclosing processes of preparation of konjac products which the
examiner concludes would have the characteristics of the claimed product. However, the
examiner has pointed to no product, in any of the cited references, which would reasonably
appear to correspond to the konjac of the claims.
We conclude that the examiner has failed to establish a prima facie case of
unpatentability of the clarified konjac claimed. Where the examiner fails to establish a
prima facie case, the rejection is improper and will be overturned. In re Fine, 837 F.2d
1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.1988). We therefore reverse the rejection
of claims 1-10 under 35 U.S.C. § 103.
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