Appeal 2007-0726
Application 10/264,561
VI. ANALYSIS
Interestingly, while the Briefs and Answer of record in this appeal
were written before the Supreme Court’s recent pronouncements on
obviousness in KSR, the issues as developed in those documents seem to
foreshadow the Supreme Court’s development of the law. Of particular
interest is the Supreme Court holding that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR, 127 S. Ct. at 1739, 82
USPQ2d at 1395. The issue in such cases becomes “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” Id.
A. Group 1, Claim 1
With regard to claim 1, there is no dispute that the prior art elements
in question were known in the art of preparing crispy expanded coatings on
edible cores. Appellants admit that the two ingredients, unmodified
pregelatinized waxy starch and raw potato starch required by the claim, were
“individually known in the art.” (FF 6; Reply Br. 5). Moreover, Chino and
Mochizuki suggest the use of these ingredients in coatings similar to that of
Lanner (FF 1, 3, 6-11). This fact alone supports a conclusion that it would
have been obvious to use these known ingredients in the coating of Lanner.
The prior art use of these ingredients in the same coating environment
evinces that the ingredients had established functions in this environment
and concomitantly that an artisan would have used these ingredients in the
coating of Lanner in order to obtain such functions.
Moreover, this use of known ingredients constitutes an optimization
of the starch composition within Lanner’s starchy flour mixture and is the
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