Appeal No. 2004-1794
Application No. 09/626,039 Page 3
examiner has failed to carry the burden of establishing a prima
facie case of obviousness. See In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745
F.2d 1468, 1471-1472, 223 USPQ 785, 787-788 (Fed. Cir. 1984).
Accordingly, we will not sustain the examiner's rejections. Our
reasoning follows.
We note that all of the claims on appeal require a
microwavable substrate with a composition including hydroxy
acetaldehyde applied thereto. The appealed claims require about
0.05 to about 0.5 mg of hydroxyacetaldehyde per square centimeter
of substrate surface. With regard to the examiner’s first stated
rejection, the examiner (answer, page 4) acknowledges that Fisher
does not teach applying hydroxyacetaldehyde (HAA) to a substrate
as required by appellants’ claims.
The examiner turns to Singh and Shoop for teaching a
browning composition that includes HAA.
In the examiner’s words (answer, page 4),
Therefore, to select any particular level of HAA
such as 0.05 to 0.5 mg/sq-cm would have been an obvious
result effective variable of the particular food to be
treated, the particular conditions for the browning
reaction, and the desired color, since Singh teaches
the concentration of pyrolysis product, which contains
the HAA, selected depends on the particular food to be
treated, the particular conditions for the browning
reaction, and the desired color, and in particular the
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