Appeal No. 1997-2014
Application No. 07/959,995
For the reasons which follow, we will sustain the § 103
rejection of claims 1 through 11 and 13 through 19 as being
unpatentable over Dobbin in view of Fahlen and Matz but not
the
§ 103 rejection of claims 1 through 20 as being unpatentable
over the California Prune Board reference.
Concerning this last mentioned reference, the appellant
and the examiner disagree as to whether the reference, vis à
vis its publication date, has been established on this record
as prior art against the here claimed invention . Even 2
assuming that the California Prune Board reference
constitutes prior art with respect to the appealed claims,
however, it is clear to us that the examiner’s rejection based
on this references cannot be sustained. This is because the
2We here clarify and emphasize that the disclosure
relied upon by the examiner in support of her rejection of
claims 1 through 20 constitutes the “oat bran muffins”
teachings in the California Prune Board reference which bears
the date “2/92” on the last page thereof. The examiner’s
referrals to other documents such as the California Prune
Board reference which bears the date “1/91” and a Washington
Post article are not relevant to the obviousness issues raised
by this rejection. It follows that we have not considered
these other documents in assessing the propriety of the
rejection in question.
4
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