Appeal No. 2002-1103
Application No. 09/580,413
Schumacher’s stabilizer includes only about 1.96-46.15 percent
fatty acids according to the Appellant’s calculations on page 7 of
the reply brief.2 Concerning this claim distinction, the Examiner,
after discussing the teachings of Stockton and Fisher, concludes
that “it would have been obvious to use other amounts of natural
fatty acids which are found in fats or isolated as fatty acids in
the composition of Schumacher depending on the particular fat”
(Answer, page 4).
We perceive no merit in this conclusion. As properly observed
by the Appellant, neither Stockton nor Fisher contains disclosure
of a stabilizer for peanut butter which includes the here claimed
amount of fatty acids. Moreover, the Examiner has provided no
exposition as to why an artisan with ordinary skill would have been
motivated to provide Schumacher’s stabilizer with other amounts of
fatty acids that are within the ranges defined by the independent
claims on appeal.
Additionally, the Examiner appears to believe that it would
have been obvious to provide Schumacher’s stabilizer with the here
claimed amounts of fatty acids based upon the theory that “[t]he
2 Significantly, the Examiner has not questioned the
accuracy of these calculations, nor do we.
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