Appeal No. 1997-2926
Application No. 08/376,299
supported by facts it cannot stand.” In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Additionally, Hoffman does not disclose or suggest the
claimed limitation that the dried cells of a microorganism are
admixed with a dried growth medium. Accordingly, the examiner
has failed to identify any reason or suggestion as to why one
of ordinary skill in the art would have used the growth medium
of Dyadechko with the freeze-dried bacteria of Hoffman. In re
Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir.
1999)(A showing of a reason, suggestion or motivation must be
clear and particular). The remaining secondary references
applied by the examiner do not overcome the deficiencies of
the references discussed above.
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). Accordingly, the
examiner’s rejections of the claims on appeal are reversed.
The decision of the examiner is reversed.
REVERSED
5
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007