Appeal No. 1996-3028
Application No. 08/270,429
so modified would not have made the modification obvious
unless the prior art suggested the desirability of the
modification. [Citations omitted].”).
Girsh filters whole mammalian milk through an
ultrafiltration apparatus to remove all hyperallergenic
components (col. 3, ll. 3-6). Although Girsh teaches various
levels of filtration (col. 3, ll. 13-50), the permeate
collected from the ultrafiltration apparatus contains
riboflavin, lactose, salt or ash, carbon compounds, dimethyl
sulfide and other minerals (col. 4, ll. 52-61). The examiner
has not established any reason, suggestion or motivation for
using the water from RO, which has no components other than
water, in place of the permeate from UF of Girsh containing,
inter alia, riboflavin, lactose and ash (see the Answer, page
5). See Gordon, supra.
For the foregoing reasons, we determine that the examiner
has not met the initial burden of establishing a prima facie
case of obviousness. See In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992). Since we have reached
this determination, we need not consider the sufficiency of
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