Appeal 2007-1371
Application 10/326,103
Appellant also contends that Kelly discloses the use of a fat-and-
carbohydrate binder and, therefore, teaches away from Appellant’s low
sugar, salt, and fat dietary bar. However, as properly noted by the Examiner,
the claims on appeal fail to define a food product that is low in sugar, salt
and fat. In addition, we agree with the Examiner that there is no reason to
believe that the binder of Kelly, which is a minor component, is not part of a
low sugar and low fat food product.
As a final point with respect to the § 103 rejections, we again note that
Appellant bases no argument upon objective evidence of nonobviousness,
such as unexpected results.
We will also sustain the Examiner’s obviousness-type double
patenting rejection of the appealed claims over claims 1-12 of U.S. Patent
No. 6,808,727. Appellant has not rebutted the Examiner’s reasonable
conclusion that it would have been obvious for one of ordinary skill in the
art to use conventional components, such as oatmeal, egg white, soy protein,
and vegetable oil in the food bar claimed in U.S. 6,808,727. The Examiner
correctly points out that the two-way distinctness cited in The Manual of
Patent Examining Procedure (MPEP) § 806.05(c) refers to a restriction
requirement and not obviousness-type double patenting. In the present case,
Appellant has not satisfied his burden of demonstrating that the claimed
subject matter would not have been an obvious modification of the subject
matter claimed in the cited patent. As noted by the Examiner, a proper
Terminal Disclaimer would overcome the double patenting rejection.
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