Appeal 2006-2327
Application 10/239,287
combination with sugar as proposed by the Examiner, would be
constitutionally identical to the Appellants’ pet food and would have been
subjected to the same cooking techniques as the Appellants’ pet food. Under
these circumstances, it is reasonable to consider that the pet food suggested
by the applied references would necessarily have the same appearance as the
Appellants’ pet food. Moreover, a number of the primary reference pet
foods are expressly described as having a brown appearance. For example,
see Froebel at lines 33-35 on page 4, Poppel at lines 23-25 of col. 7, and
Karwowski at ll. 28-30 of col. 12. Further in this regard, we are aware of no
distinction between pet food having a browned appearance such as the pet
food of Froebel, Poppel, and Karwowski and pet food having a seared
appearance. Significantly, no such distinction is argued by the Appellants in
their Briefs. Indeed, the Appellants’ Specification seems to use the terms
browning and searing synonymously (e.g., see the penultimate paragraph on
Specification page 1).
In light of the foregoing, it is our ultimate determination that the
reference evidence adduced by the Examiner establishes a prima facie case
of obviousness which the Appellants have failed to successfully rebut with
argument or evidence of nonobviousness. We hereby sustain, therefore,
each of the Section 103 rejections before us on this appeal. See In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
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