Appeal No. 2006-1027
Application No. 09/865,074
acceptable. As a practical matter, the Patent Office is not equipped to
manufacture products by the myriad of processes put before it and then
obtain prior art products and make physical comparisons therewith. In
re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
We determine that the examiner has established a reasonable belief that the
snack product disclosed by Willard, which is made from the same dough components in
the same amounts as required by claim 21 on appeal, and is made without a baking
step before the frying step, is either the same or only slightly different than the claimed
product. Accordingly, the burden of proof has shifted to appellants, and appellants have
not presented any objective evidence that the product of Willard differs substantially
from the claimed product. See In re Fessmann, supra.
Contrary to appellants’ arguments, we determine that Willard teaches and
suggests various degrees of gelatinization, and the importance of pregelatinization,
viscosity, and water absorption in making a snack product without a baking step before
frying. Willard repeatedly teaches and desires that his snack product is made without
any baking step before the frying step (col. 2, ll. 28-32; col. 4, ll. 6-11; and col. 11, ll. 2-
9). Willard also teaches that the “pregelatinized corn flour” component is corn flour that
has been subjected to sufficient moist heat treatment during processing “to gelatinize a
portion of the starch thereby increasing the water absorption of the flour” (col. 5, ll. 1-5).
Willard further teaches that pregelatinized corn flours are available in “varied degrees
of water absorption capacity” (col. 5, ll. 5-7). Therefore Willard clearly teaches various
degrees of pregelatinization as a “result-effective variable,” depending on the desired
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