Appeal No. 2002-2333
Application No. 09/741,467
the examiner, nonetheless, is not relieved from establishing a
prima facie case that the claimed product is not patentably
distinct from the prior art product. Before the burden is
shifted to an applicant to demonstrate that the claimed and prior
art products are, in fact, patentably distinct, the examiner must
first make the case that the claimed product reasonably appears
to be substantially the same as the product disclosed by the
prior art. In the present case, it is our judgment that the
examiner has not carried this initial burden.
As emphasized by appellant, the claimed composition is
produced by first forming cross-linked matrices of protein in an
evaporator, and then adding dietary fiber to the cross-linked
matrices before spray atomizing the mixture in a spray dryer. On
the other hand, Kuipers provides no disclosure that the protein
is first processed into cross-linked matrices before mixing the
protein with dietary fiber. Kuipers teaches no processing of
the protein before a mixture is formed with fiber, which mixture
is subsequently extruded at temperatures higher than those used
in the claimed evaporator. In view of this distinct difference
in the processes employed by appellant and Kuipers, it is
incumbent upon the examiner to set forth a rationale why it would
be reasonable to conclude that the processed cross-linked
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