Appeal No. 1996-0111
Application 08/041,428
If we step back for a moment and view the prior art relied upon by the examiner in
the absence of applicant's disclosure and claims, we find, as acknowledged by the
examiner, that there is nothing in the prior art which would reasonably suggest to one of
ordinary skill in this art to take the information provided by the references regarding the
presence of elevated levels of " -AGP in diseased animals and use it in a diagnostic
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method for evaluating the relative health within a group of animals and used this
information in animal management as presently claimed.
As stated by appellants (Principal Brief, page 10):
The animal management methods described in the pending claims require a series of
specifically stated steps for controlling and maintaining a population of animals in a
condition of optimum health to maximize productivity and insure commercial marketability,
for evaluating the health profile of animal groups and for maintaining the quality of products
at an acceptable level. Neither the cited references themselves nor the knowledge
generally available to those skilled in the art at the time [sic, of] the present invention was
made contains any suggestion whatever of the animal management methods described in
Appellant's claims.
It is the initial burden of the patent examiner to establish that claims presented in an
application for patent are unpatentable. In re Oetiker, 977 F.2d 1443, 1446, 24 USPQ2d
1443, 1445 (Fed. Cir. 1992). In order to meet the burden of establishing a prima facie
case of unpatentability of the claimed subject matter the examiner must establish that there
is a reason, based on the prior art, or knowledge generally available in the art, as to why it
would have been obvious to one of ordinary skill in the art to arrive at the claimed invention.
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 297 n.24, 227 USPQ
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