Appeal No. 1999-0157
Application No. 08/113,310
the fermenting time at the predetermined temperatures as
recited in Appellant's claims.
Appellant further argues on pages 5 through 7 of the
brief that the modification of Moo-Young with Christ, as
proposed by the Examiner, would impermissibly destroy the
intended mode of practicing the process of the Moo-Young
process. Appellant points out that the Moo-Young process
employs an aerobically fermenting process while Christ employs
an anaerobic fermenting process. Appellant points out that
the modification of employing an anaerobic fermenting process
to the Moo-Young process would destroy the Moo-Young
fermenting process.
The Federal Circuit states that "[t]he mere fact that the
prior art may be modified in the manner suggested by the
Examiner does not make the modification obvious unless the
prior art suggested the desirability of the modification." In
re Fritch, 972 F.2d 1260, 1266 n.14, 23 USPQ2d 1780, 1783-84
n.14 (Fed. Cir. 1992), citing In re Gordon, 733 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). It is further
established that "[s]uch a suggestion may come from the nature
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