Appeal No. 1996-0876
Application 08/123,144
Turning to the rejection of claims 7, 15, and 23 in further view of Hawley, since we
do not find that the examiner has met his initial burden of establishing a prima facie case
of obviousness of the basic method of treating a food product over the primary and
secondary references applied in Rejection I, it reasonably follows that we do not find that a
dictionary which merely defines tocopherol, overcomes the deficiencies of the primary
rejection.
Accordingly, Rejections I and II are reversed.
II.
Upon review of the record before us, we have determined that some of the issues,
as presented, are not ripe for appeal. Accordingly, we remand the application to the
examiner for several reasons.
First, we direct attention to the examiner’s rejection of claim 17. In view of its
brevity, we reproduce said rejection in its entirety. It reads as follows:
As for claim 17, it would have been further obvious to have coated said nuts
with the first coating while under reduced pressure for the reasons set forth above
with respect to Reznik [Paper No. 8, p. 5].
However, the Reznik reference was not included in the examiner’s statement of the
rejection set forth on p. 2 of Paper No. 8. See also, pp. 3-4 of this Decision. Nor do we
find a discussion of said Reznik reference anywhere in Paper No. 8. Consequently, the
6
examiner has left both the appellant and this merits panel “up in the air” as to what factual
6In response to the examiner’s rejection of claim 17, the appellant states:
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007