Appeal No. 1998-2836
Application No. 08/453,211
“animal bones are fired at a temperature between 800EC and
1100EC for 3 through 7 hours to leave inorganic components
alone.” Id. at 9. After firing, the “inorganic animal bones
are pulverized into animal bone powder.” Id. Thus, we
understand the language “animal bone powder” to include within
its scope pulverized inorganic matter derived from animal
bones, i.e., animal bones which have been fired to leave the
inorganic components of the animal bones alone.
Claim 1 stands rejected under 35 U.S.C. § 103. The
guidance provided by our reviewing court in evaluating the
issue of obviousness of the invention in view of the teachings
of the applied prior art is as follows: The initial burden of
establishing a basis for denying patentability to a claimed
invention rests upon the examiner. See In re Rijckaert, 9
F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). The
question under 35 U.S.C. § 103 is not merely what the
references expressly teach but what they would have suggested
to one of ordinary skill in the art at the time the invention
was made. See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089,
1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981). While there must be some
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