Appeal No. 1997-4259
Application No. 08/259,474
re Glass, 474 F.2d 1015, 1019, 176 USPQ 529, 532 (CCPA 1973);
In re Ludtke, 441 F.2d 660, 664, 169 USPQ 563, 566 (CCPA 1971)
and In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 229
(CCPA 1971). Appellants have provided no evidence or
convincing line of reasoning which establishes that the
triglycerides of Destouet lack the capability attributed to
them by this panel of the Board and by the examiner in the
earlier Office actions. Thus, appellants have not satisfied
their burden of proof in attempting to overcome the rejection
of claim 12 under 35 U.S.C. 102(b) based on Destouet and the
examiner’s rejection of claim 12 will therefore be sustained.
As for the examiner’s rejection of claim 12 under 35
U.S.C. § 103 based on Destouet, we will also sustain this
rejection, given that anticipation or lack of novelty is the
ultimate or epitome of obviousness. See In re Fracalossi, 681
F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982) and In re
Pearson, 494 F.2d 1399, 1403, 181 USPQ 641, 644 (CCPA 1974).
Regarding the examiner’s rejection of claim 1 under
13
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