Appeal No. 2005-2462
Application No. 09/906,977
actual gf hardness values of the dehydrated potato products
fairly taught by Villagran. Unfortunately, appellants have
bought no such evidence to our attention.
We also concur with the examiner’s reasoning that the
hardness of the dehydrated potato products is a result effective
variable that would have been obvious for one of ordinary skill
in the art to optimize within the course of routine
experimentation. As noted by the examiner, appellants have not
proffered any objective evidence that dehydrated potato products
within the scope of the appealed claims are unexpectedly superior
to the dehydrated potato products fairly taught by Villagran.
This lack of evidence also applies to the process steps recited
in claims 2 and 3. As set forth by the examiner, appellants have
not demonstrated that the claimed final product, prepared by
adding 0.5% to about 50% wheat starch to the wet mash before
dehydrating, is patentably distinct from the dehydrated products
of Villagran. Again, it would not seem to place an undue burden
on appellants to place of record any evidence which distinguishes
the claimed and prior art products.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is affirmed.
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