Appeal No. 2003-1092
Application No. 09/692,730
select specific concentrations from patentee’s broadly disclosed
range which fall within the Appellants’ disclosed and claimed range
of lysine concentration. If so and if the Examiner further
believes that the slurry resulting from these selections is
indistinguishable from the slurry claimed by the Appellants, the
Examiner must express these beliefs and the reasons therefor
in the context of a rejection under 35 U.S.C. § 103. On the other
hand, if the Examiner believes the appealed claims are patentable
over Grumbine, this belief and the reasons therefor must be
expressly stated in the record of this application file.
In any case, it is paramount that the record be clarified as
to whether and why the Examiner considers the appealed claims to be
patentable or unpatentable over the above discussed disclosure of
Grumbine.
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