Appeal No. 2000-1087
Application No. 08/976,102
has not shown that the way the sugar is obtained results
in a different product from the Hembling et al product.
The examiner’s conclusions are fatally flawed in that they are
not supported by any factual evidence. The examiner has provided
no factual evidence that the claimed sugar crystals having
particular sizes are known. Nor has the examiner explained why
“[t]he selection of any particular size would have been an obvious
matter of choice.” Accordingly, we are constrained to reverse the
examiner’s decision rejecting the claims on appeal under 35 U.S.C.
§ 103.
REMAND
As acknowledged by appellants at page 4 of their Brief, Chen
teaches readily water-dispersible dry crystallized sugar (sucrose)
aggregates having the claimed particle sizes (3-50 microns) which
are produced from the same or substantially the same
crystallization process as that claimed. See column 1, line 45 to
column 2, line 3 and column 3, line 8 to column 4, lines 20. The
sugar aggregates can be produced by adding food additives at any
step during the crystallization process, e.g., concentrating and
crystallization, thus incorporating into a sugar matrix the
additives. See column 2, lines 4-24 and column 3, lines 16-26.
These sugar aggregates are useful for powder or granular form food
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