Appeal No. 2005-0808 Page 4
Application No. 09/863,439
“glycerides . . . are well known food ingredients[;]” and “[a] person of ordinary skill in the
art would recognize the benefits of using the high purity extracts taught by [Snyckers
and Mishurova]” in “the optimal amount of each ingredient . . . to best achieve the
desired results” (id.).
“[T]he examiner bears the initial burden of presenting a prima facie case of
obviousness.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993). The examiner may establish a case of prima facie obviousness based on a
combination of references “only by showing some objective teaching in the prior art or
that knowledge generally available to one of ordinary skill in the art would lead that
individual to combine the relevant teachings of the references.” In re Fritch, 972 F.2d
1260, 1265, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992).
It may well be that one skilled in the art of food production would have found it
obvious to purify oleanolic acid and ursolic acid according to the pharmaceutical
standards described by Snyckers and Mishurova, even though Kang teaches that crude
extracts of the acids are suitable for use as additives to artificially sweetened products.
Nevertheless, we see nothing in Kang’s generic reference to artificially sweetened foods
and beverages which would have led one skilled in the art to mix the acids with a blend
containing 5-80 wt % glycerides having the solid fat content specified by the claims.
“It is impermissible to use the claimed invention as an instruction manual or
‘template’ to piece together the teachings of the prior art so that the claimed invention is
rendered obvious.” In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed.
Cir. 1992), citing In re Gorman, 933 F.2d 982, 987, 18 USPQ2d 1885, 1888 (Fed. Cir.
1991). As set forth in In re Kotzab, 217 F.3d 1365, 1369-70, 55 USPQ2d 1313, 1316
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