Appeal No. 2004-2017
Application 09/501,559
Claims 1, 2, 5-11, 27-30, 34-37, 41-66, 69 and 70 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Rutenberg (Answer, page 3). Claims 1, 3, 4, 27,
31, 32, 34, 38, 39, and 66-68 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Rutenberg in view of Dino, Harris and the admitted prior art as found in appellants’
specification (Answer, page 5). We affirm both rejections on appeal essentially for the
reasons stated in the Answer, as well as those reasons set forth below.
OPINION
The examiner finds that Rutenberg discloses a method of manufacturing guar
gum powder and teaches that extruding the hydrated guar gum splits prior to grinding
results in a gum with increased viscosity (Answer, page 3). The examiner also finds
that Rutenberg teaches flaking (flattening) of the hydrated guar gum splits prior to
grinding results in a product with higher viscosity than non-flaked guar gum splits (id.).
The examiner recognizes that Rutenberg fails to disclose the use of both extruding and
flaking steps as required by claim 1 on appeal, but concludes that it would have been
obvious to one of ordinary skill in this art to combine such steps since “it would logically
flow that the combination would produce the same effect, and would supplement each
other.” Answer, page 4, citing In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA
1960). We agree.
Appellants argue that Rutenberg “teaches away” from both extruding and flaking
by downplaying the effectiveness of the flaking step (Brief, pages 5-7). This argument
is not well taken. As held by our reviewing court:
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