Appeal No. 2006-0825
Application No. 10/253,333
was known in the art to use rice flour as an anti-sticking agent
for frozen dough (see page 1 of specification, last paragraph).
As for the claimed particle size, it is well settled that
where patentability is predicated upon a change in a condition of
a prior art composition, such as a change in concentration or
particle size, the burden is on the applicant to establish with
objective evidence that the change is critical, i.e., it leads to
a new, unexpected result. In re Woodruff, 919 F.2d 1575, 1578,
16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454,
456, 105 USPQ 233, 235 (CCPA 1955).
In the present case, appellants have not established on this
record that the use of edible powders having a particle size
within the claimed range achieves a new, unexpected result as an
anti-sticking agent for frozen dough. While appellants make
reference to specification data at pages 14 and 15 of the
specification, appellants have not provided the requisite
analysis of the data which demonstrates that methods and products
within the scope of the broadly drafted claims on appeal produce
unexpected results. It is not within the purview of this Board
to analyze specification data and ferret out results in a light
that is most favorable to appellants. Manifestly, it is
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