Appeal No. 2002-2215
Application No. 08/952,475
Moreover, the appellants have not established that the
relied upon evidence, which is limited to a composition
containing 10.0% animal protein, 10.0% vegetable protein, 38.3%
corn starch, 20.0% sucrose, 5.0% cellulose, 1.0% vitamins, 3.5%
minerals, 0.2% choline bitartarate, 6.0% animal fat (lard), and
6.0% vegetable oil (soybean oil), is commensurate in scope with
appealed claim 11, which is not so limited. In re Kulling, 897
F.2d 1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir.
1990)(“‘[O]bjective evidence of nonobviousness must be
commensurate in scope with the claims.’”)(quoting In re Lindner,
457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972)); In re Dill,
604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA 1979)(“The evidence
presented to rebut a prima facie case of obviousness must be
commensurate in scope with the claims to which it pertains.”).
Because the appellants have not successfully rebutted the
examiner’s prima facie case of obviousness, we uphold this ground
of rejection.
Bonkowski and Helmer
Bonkowski describes low calorie, low cholesterol muscle meat
products. (Column 1, line 6 to column 2, line 12.) Bonkowski
further teaches a frankfurter obtained by combining 30.15 kg of
95% lean beef, 20.00 kg of 95% lean pork, 43.50 liters of water,
and 7.35 kg of a brine mixture (containing 29.55% isolated soy
6
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