Appeal 1995-2560
Application 07/833,973
Appellants emphasize the distinction between the water
insoluble products produced by the processes they claim and
the water soluble products Zaffaroni uses as nonnutritive
flavor imparting agents (Br., pp. 18-20). Had appellants
considered all the teaching of the reference, they would have
learned, as persons having ordinary skill in the art have
learned from reading the entire prior art disclosure, that
Zaffaroni discloses (1) methods for making water soluble
nonnutritive flavor imparting compounds, and (2) methods for
making substantially water insoluble precursor or intermediate
compounds whose aqueous solubilities can be chemically
improved for use as nonnutritive flavor imparting compounds.
Prior art must be considered for everything it would have
disclosed to persons having ordinary skill in the art,
including nonpreferred embodiments. In re Burckel, 592 F.2d
1175, 1179, 201 USPQ 67, 70 (CCPA 1979); In re Lamberti, 545
F.2d 747, 750, 192 USPQ 278, 280 (CCPA 1976). Here, as in In
re Plockinger,
481 F.2d 1327, 1332, 179 USPQ 103, 106 (CCPA 1973):
. . . [A]ppellants introduced the issue of criticality
in order to rebut any prima facie case of obviousness
established . . . . In order to determine the propriety
of the rejection, this [Board] . . . must be able to
examine the evidence to determine whether, and to what
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