Appeal No. 2004-2047
Application 09/817,419
cook time is about 20 to about 40 minutes, and fully cooked berries have a moisture content of
from about 44-51%.
Whitney again notes the inherent disadvantages in batch processes (col. 3, ll. 25-28 and
40-42), and points out the continuous cooking process “is more easily controlled and the
undesired variations in degree of cook and hydration within and between batches . . . can be
substantially reduced . . . [and] provides the opportunity to more accurately and precisely control
the degree of cook and produce a uniform population of cooked berries” (col. 3, ll. 29-40).
Whitney describes the a variety of vessels that can be used for the continuous process in addition
to the cooking vessels of Whitney FIG. 1 (col. 3, l. 35, to col. 6, l. 14). In the sole Example,
wheat berries having a moisture content of “320°C [sic, 32%]” were continuously treated at
98°C for 28 minutes, and the product is described as “[f]ully cooked wheat” (col. 6, ll. 17-37).
The principal issue with respect to the ground of rejection under § 102(b) (answer, e.g.,
pages 3 and 5-6) is whether the teachings and inferences that one skilled in the art would find as
a matter of fact in the disclosure of Whitney, taken as a whole, with respect to the disclosed
process of continuously cooking grains containing starch by heating in water at the specified
temperature “for a period of time sufficient to substantially fully cook said grain,”2 would have
described the claimed invention of appealed claims 1 and 11 through 13 within the meaning of
this statutory provision. In this respect, it is well settled that the examiner has the burden of
establishing a prima facie case of anticipation under§ 102(b) in the first instance by pointing out
where, as a matter of fact, each and every element of the claimed invention, arranged as required
by the claim, is described identically in a single reference, either expressly or under the
principles of inherency, in a manner sufficient to have placed a person of ordinary skill in the art
in possession thereof. See generally, In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657
(Fed. Cir. 1990). “When the PTO shows sound basis for believing that the products of the
2 It is well settled that a reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in this art would have reasonably been expected to draw
therefrom, see In re Fritch, 972 F.2d 1260, 1264-65, 23 USPQ2d 1780, 1782-83 (Fed. Cir.
1992); In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968); In re Aller, 220 F.2d
454, 458-59, 105 USPQ 233, 237 (CCPA 1955), presuming skill on the part of this person. In re
Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985).
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