Appeal No. 1997-0527
Application No. 08/380,255
particular amounts of ingredients are seen as being adjustable
by one of ordinary skill in the art” (Answer, page 5). Such
assertions, in the absence of evidentiary support by the
applied prior art, are simply inadequate to establish a prima
facie case of obviousness. We appreciate that the examiner,
in her response to the argument section of the Answer refers
to Mange's disclosure regarding the maximum sugar content of
almond paste confectionary in general. However, this specific
disclosure and indeed the Mange patent generally lack a
teaching or suggestion of mixing a paste with sugar or other
such material in dry solid form and in the concentration
required by the appellants' claims. Indeed, as correctly
pointed out in the Brief, it is at best speculative as to
whether the saccharose added at the beginning of Mange's
process would be in the here claimed form of a dry solid much
less in the here claimed concentration.
In light of the foregoing, it is our determination that
we cannot sustain the examiner's § 103 rejection of claims 1
through 11, 13 through 17, and 32 through 42 as being
unpatentable over Mange in view of Dzurik, Avera and
Richardson and further in view of Wong or her § 103 rejection
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