Appeal No. 1996-3028
Application No. 08/270,429
in a non-milk dairy product for consumption, the dairy
product being substantially pure and free of impurities from
the dairy starting material; and
packaging the substantially pure non-milk dairy
beverage.
The examiner has relied upon the following references as
evidence of obviousness:
Girsh 4,954,361 Sep. 4,
1990
Ermens et al. (Ermens) 0 364 053 Apr. 18,
1990
(Published European Patent Application)
Appellant has relied upon the following references in
rebuttal to the examiner’s evidence of obviousness (Brief,
Appendices B and C):
Dairy Research Review, Vol. 1, Issue 2, 1985 (Author and page
nos. are unknown)
Jack Mans, “Fines as High as $100,000 Per Day,” Dairy Foods,
p. 89, Apr. 1993.
The examiner has made a new ground of rejection in the
Answer, with all of the claims on appeal now rejected under
35 U.S.C. § 103 as unpatentable over Ermens or Girsh (Answer,
pages 3-4). We reverse both of the examiner’s rejections for2
2Although the examiner has not explicitly stated that the
final rejection of claims 1-16, 18, 20 and 23-26 under § 103
over Girsh in view of Coulter ( U.S. Patent No. 2,712,504,
3
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