Appeal No. 1998-2836
Application No. 08/453,211
§ 103. See In re Ruff, 256 F.2d 590, 599, 118 USPQ 340, 348
(CCPA 1958).
Thus, it is our conclusion that, on balance, the evidence
and arguments provided by the appellants fail to outweigh the
evidence of obviousness established by the prior art. This
being the case, we will sustain the examiner’s rejection of
claims 1, 3 and 19. Since claims 2, 16, 17, 20, 22 and 23
stand or fall with independent claim 1 and claim 21 stands or
falls with claim 19, supra, it follows that we will also
sustain the standing
35 U.S.C. § 103(a) rejection of those claims.
Claim 18, dependent from claims 16 and 17, requires,
inter alia, that the animal bone powder be bovine bone powder.
Neither Ito nor Oonishi teaches or suggests bovine bone powder
or calcium phosphate derived from powdered bovine bone.
Apparently realizing this, the examiner cites page 8, lines 8-
13 of the appellants’ specification for its teaching that the
source of the animal bone powder may be from a wide variety of
animals living on the land and under the sea. The examiner
then “takes Official Notice” of the equivalence of bone powder
derived from a wide variety of animals living on the land and
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