Appeal No. 2006-0064 Παγε 18
Application No. 09/155,740
the workable or optimum roller spacing for a given fruit size is
reasonably considered to be within the skill of the art upon
routine experimentation, especially given the trial and error
approach discussed at column 4, lines 7-10 of Reznik. See In re
Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980)
(“[D]iscovery of an optimum value of a result effective variable
in a known process is ordinarily within the skill of the art.”);
In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA
1955)(“[W]here the general conditions of a claim are disclosed in
the prior art, it is not inventive to discover the optimum or
workable ranges by routine experimentation.”).
Accordingly, we shall also sustain the examiner’s
obviousness rejection of claims 6-8 and 14-16, on this record.
Finally, concerning appellants’ group IV claims (dependent
claims 18 and 19), we select claim 18 as the representative
claim. Appellants further note the water activity limitation
recited therein but do not provide any further elucidation as to
why the solute treated dates of Reznik, as modified by Hsieh,
would not be reasonably expected to achieve a water activity
level as claimed. In this regard, we note that appellants
acknowledge that it is known that intermediate moisture foods
having a moisture content of 15 to 50 % can have a water activity
Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: November 3, 2007