Appeal No. 2005-1598
Application 10/103,162
together with the independent claim in that group (brief,3 pages 10). The first grouping of claims
includes claims 49 and 50 which are separately rejected in the second ground of rejection.
Appellants rely on the same arguments made with respect to the first ground of rejection in
addressing the second ground of rejection, and accordingly, claims 48 and 50 stand or fall with
the other claims in that group (id., page 21). Thus, we decide this appeal based on appealed
independent claims 37, 53, 64 and 67 as representative of the respective groups and the grounds
of rejection. 37 CFR § 1.192(c)(7) (2003); see also 37 CFR § 41.37(c)(1)(vii) (September
2004).
We affirm.
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the answer and to the brief for a complete exposition thereof.
Opinion
Appellants call attention to our prior decision in appeal 2003-0632 entered in application
09/648,702 on May 29, 2003, and frame certain arguments here in view thereof (brief, e.g.,
pages 4 and 11-13). The present appealed claims differ from those before us in the prior appeal.
Thus, while the same prior art is applied in the present and prior appeals, we must consider the
limitations in the present appealed claims with respect to whether a prima facie case of
obviousness has been established by the examiner and, if so, whether appellants have rebutted
the same based on the record before us in this appeal. Cf. In re Rinehart, 531 F.2d 1048, 1051,
189 USPQ 143, 147 (CCPA 1976).
We have carefully reviewed the record on this appeal and based thereon find ourselves in
agreement with the supported position advanced by the examiner that, prima facie, the claimed
packaged food product encompassed by appealed claims 37 and 64 and the claimed method of
preparing a food product with that packaged food product encompassed by appealed claims
53 and 67 would have been obvious over the teachings of Scherwitz to one of ordinary skill in
2 The examiner has withdrawn the ground of rejection under the judicially created doctrine of
obviousness type double patenting because application 09/648,702 applied in the rejection is
abandoned (answer, page 2). See below p. 4.
3 We consider the brief filed February 5, 2004
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