Appeal No. 2001-0955
Application No. 08/815,971
Mossinghoff, 227 USPQ 848)” (answer page 4).
OPINION
For the reasons which follow, this rejection cannot be sustained.
On the record of this appeal, the examiner has proffered no specific evidence in
support of the “incredible utility” position upon which the § 101 rejection is based.2
Instead, this “incredible utility” position seems to have developed as a result of the
examiner’s failure to find prior art which discloses using silica per se as a food flavorant.
Despite the obvious weakness of such a foundation for the examiner’s § 101 rejection,
the appellant has submitted substantial evidence in support of his position that the here
claimed charged silica particles possess a food-flavorant utility.
In deference to the examiner’s determination that this evidence is unpersuasive,
we acknowledge that a considerable amount of the evidence has not been well
developed or well presented in relation to clearly supporting a conclusion that food
combined with the here claimed charged silica particles as the only flavorant exhibits
enhanced flavor properties compared with the same food without such charged silica
particles. Nevertheless, a number of the comparative tests proffered by the appellant
provide a least some probative support for this conclusion.
For example, Exhibit D of the Holcomb affidavit dated January 8, 1997 shows
2 However, we note that Hawley’s Condensed Chemical Dictionary (11th edition) defines silica as
“odorless and tasteless” and therefore provides at least some specific evidentiary support for the
examiner’s position.
3
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