Appeal No. 1996-4109
Application No. 08/123,557
Pflaumer actually suggests lowering the amount of grain product even further …
[and] Colliopoulos does not remedy these failings.”
In response to appellant’s arguments the examiner states (Answer, page 6)
that “[t]he cereal mixes of WULLSCHLEGER et al. could be contemplated to be dry
mixes, but pre-mix forms of food products are routine in the art as is exemplified by
the fiber bars and fiber drink mixes of COLLIOPOULOS” [emphasis added]. The
examiner fails to identify where in the combination of references one can find a
reason, suggestion or motivation to lead an inventor to combine those references.
Pro-Mold and Tool Co. v. Great Lakes Plastics Inc., 75 F.3d 1568, 1573, 37
USPQ2d 1626, 1629 (Fed. Cir. 1996).
On these facts, we find that the only reason or suggestion to modify the
references to arrive at the present invention comes from appellant’s specification.
Accordingly, we reverse the examiner’s rejection of claim 18 under 35
U.S.C. § 103.
Having determined that the examiner has not established a prima facie case
of obviousness, we find it unnecessary to discuss the Bailey Declaration (executed
February 2, 1995), or the Wullschleger Declaration (executed February 3, 1995)
relied on by appellant to rebut any such prima facie case.
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