Appeal No. 2001-1002
Application No. 08/709,963
examiner’s reasoning has merit. Moreover, it is significant that
the appellants have submitted no rebuttal to this reasoning in
their reply brief.
Under these circumstances, we will adopt the examiner’s
reasoning as our own and concomitantly will sustain her Section
112, first paragraph, rejection of claims 4 and 21-23.
Regarding the Section 103 rejection, the appellants and the
examiner agree that all of the appealed claims distinguish over
Anderson by requiring the thickening agent to be present in an
amount of at least 2.5 percent by weight of the composition. In
the browning composition of Anderson, the thickening or
viscosifying agent is “present at a concentration of from about
0.01 to about 1 percent by weight, preferably at from about 0.05
to about 0.4 percent by weight” (column 2, lines 41-43).
Regarding this claim feature, the examiner expresses her
obviousness conclusion in the following manner on page 5 of the
answer:
While it is recognized that Anderson et al[.] do not
disclose the amount of thickening agent as claimed and might
be teaching away from increasing the amount by disclosing
that it is preferable to use less than the broad range
disclosed, the claimed amount is not deemed to be patentable
in absence of showing of unexpected results. It is well
known in the art to add thickening agent to increase or
decrease the viscosity of a composition; therefore, it would
have been obvious to one skilled in the art to use more or
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