Appeal No. 2005-2462
Application No. 09/906,977
about 60% broken cells (column 7, lines 64-65). In addition,
appellants’ specification discloses that “[t]he potato flakes
comprise from about 5% to about 14%, preferably from about 5% to
about 12%, more preferably from 6% to about 9%, and still more
preferably from about 7% to about 8% moisture” (page 17, lines
10-12). Significantly, Villagran discloses the same moisture
content of “preferably about 6% to about 9%, and more preferably
from about 7% to about 8% moisture” (column 8, lines 44-46).
Accordingly, based on the general correspondence between the
physical properties for the dehydrated flakes of appellants and
Villagran, we find that it is reasonable to place upon appellants
the burden of establishing a patentable distinction between the
presently claimed product and that disclosed by Villagran. This
is eminently fair because the USPTO does not have the facilities
and wherewithal to test prior art products, and it is
particularly fair and reasonable in the present case inasmuch as
both appellants and Villagran share the same assignee, the
Proctor and Gamble Company. It would seem that no one is in a
better position than appellants to place on this record the
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