Appeal No. 2001-2492
Application 08/817,277
Cir. 1992). The examiner has not established that the applied
prior art itself would have led one of ordinary skill in the art
to dilute Davis’ control composition, which is disclosed as being
diluted 5:1 (col. 4, lines 50-51), by a factor of at least
200:1.1
We therefore find that the examiner has not set forth a
factual basis which is sufficient to support a conclusion of
prima facie obviousness of the appellant’s claimed invention.
1
1 If the examiner considers any particular component of
Davis’ control concentrate to be the appellant’s flavor
composition, then the examiner has not established that the
component has an oil phase and an aqueous phase which separate
noticeably at 20ºC within 2 hours when exposed only to
gravitational forces as required by the appellant’s independent
claim.
5
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