Appeal No. 2006-3110 Page 7
Application No. 10/185,846
position. Arguments of counsel cannot take the place of evidence lacking in the record.
Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 593, 44 USPQ2d 1610, 1615
(Fed. Cir. 1997). Secondly, as pointed out by the examiner, the rejection does not rely
on Roney for its teaching of what fiber to use in a cooked food product. Answer, page
6. Roney’s relevance was for its teaching of the composition of potato fibers. Finally,
we note that Feeney’s dough contains added reducing sugars (e.g., glucose, maltose,
and lactose), and Feeney did not find them averse. Feeney, column 13, lines 38-39;
column 17, lines 59-60. Appellants’ argument is inconsistent with this fact.
For the foregoing reasons, it is our opinion that the examiner has provided the
evidence necessary to establish a prima facie case of obviousness. Accordingly, we
affirm the rejection of claim 1 under 35 U.S.C. § 103 as being unpatentable over Feeney
in view of Roney. Claims 2-20 fall with claim 1 since Appellants did not specifically
challenge the rejection of these claims. In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d
1525, 1528 (Fed. Cir. 1987).
Other Issues
If prosecution in this application is resumed, we direct the Examiner’s attention to
U.S. Pat. No. 4,315,954 which describes a snack product containing potato fiber.
Summary
The rejection of claims 1-20 over prior art is affirmed.
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