Appeal No. 2003-1887
Application 09/780,914
Hsu for teaching that it is well known, in the art of pasta-
making, to use gluten as a pasta ingredient as a protein
material.
We agree with the examiner that Sammet teaches combining soy
flour, farina and a fluid ingredient as claimed by appellants,
and we also agree that Hsu teaches that gluten is a well-known
pasta ingredient.
We observe that throughout appellant’s Brief, appellant
argues that Hsu lacks required teachings. We note, however, that
one cannot show nonobviousness by attacking the references
individually where the rejection is based on the combined
teachings of the references. As explained by the Court in In re
Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981):
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure
of the primary reference; nor is it that the claimed invention
must be expressly suggested in any one or all of the references.
Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.
As pointed out by the examiner on page 6 of the Answer, Hsu
was relied upon only for teaching that gluten is a commonly used
protein material in pasta products. The examiner states that
Sammet was relied upon for teaching a method for preparing soy
based pasta comprising combining soy flour, farina, and a fluid
ingredient into a dough and then forming the dough into a desired
shape. These combined teachings are used by the examiner in
rejecting the claims. Hence, we are unconvinced by appellant’s
allegations that Hsu does not teach the claimed subject matter
because Sammet is primarily relied upon by the examiner.
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