Appeal No. 2003-1887
Application 09/780,914
With specific regard to Sammet, appellant argues that Sammet
discloses soy grits and not flour. Brief, page 4. We disagree.
Sammet discusses soy flour, beginning in column 1 at line 16. In
a preferred embodiment, Sammet indicates that it has been found
that the consistency and baking qualities of pasta are improved
when a proportion of soya is in the form of grits rather than
flour. We note that a preferred embodiment is not controlling,
since all disclosures of the prior art, including unpreferred
embodiments, must be considered. In re Lamberti, 545 F.2d 747,
750, 192 USPQ 278, 280 (CCPA 1976); In re Mills, 470 F.2d 649,
651, 176 USPQ 196, 198 (CCPA 1972). Therefore, we disagree with
appellants’ characterization that Sammet does not disclose soy
flour.
With regard to appellant’s comments that his pasta has a
surprisingly pleasing taste, we refer to the examiner’s response
beginning on page 7 of the Answer and incorporate that response
as our own. For the reasons set forth by the examiner on page 7
of the Answer, we determine that appellant’s rebuttal evidence
regarding the surprisingly pleasing taste of their pasta is
insufficient to overcome the obviousness rejection.
In view of the above, we therefore affirm the rejection.
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