Appeal No. 1998-0787
Application No. 08/491,769
1348, 162 USPQ 145, 147 (CCPA 1969). Since we agree with the
examiner that the use of "recirculation as a means of
reprocessing is seen to be an obvious means of reducing the
amount of equipment required in the spread making process"
(sentence bridging pages 5 and 6 of Answer), without changing
the basic nature of the product, and the Patent and Trademark
Office is not equipped to make physical comparisons between
products made by claimed and prior art processes, we find it
reasonable to place on the present appellants the burden of
demonstrating that the fat continuous spread made by the
recited process is patentably distinct from the fat continuous
spread of the prior art processes.
Appellants contend at page 12 of the Brief that "[t]he
recirculation step of the specific cooled emulsion into the
partially crystallized emulsion is critical to form products
which are consumer acceptable," and that Example 1 of the
instant specification demonstrates that the recirculation step
produces a smooth spread which exhibits good mouthfeel and
melting characteristics whereas the fat spreads prepared
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