Appeal No. 1997-2014
Application No. 07/959,995
reference disclosure concerning “oat bran muffins”, which the
examiner relies upon as support for her obviousness
conclusion, quite plainly would not have suggested the here
claimed invention.
More specifically, the aforementioned disclosure relates
to a muffin product having a fat content many times higher
than the maximum allowed by independent claims 1 and 8.
Moreover, the examiner’s position that it would have been
obvious to lower the fat content of this product so as to be
within the here claimed range simply is not supported by the
requisite teaching/ suggestion and reasonable expectation of
success. In re O’Farrell, 853 F.2d 894, 903-904, 7 USPQ2d
1673, 1680-1681 (Fed. Cir. 1988). Similarly, the California
Prune Board reference contains no teaching or suggestion of a
dry premix having the ingredients and proportions defined by
appealed independent
claim 6.
In light of these evidentiary deficiencies, we cannot
sustain the examiner’s § 103 rejection of claims 1 through 20
as being unpatentable over the California Prune Board
reference.
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