Appeal 2007-1678
Application 09/800,547
5. Trainor describes using a conventional colloid mill with a rotor
and stator (Trainor, col. 6, ll. 25-31).
6. Ross is directed to a rotor and stator assembly for mixers and
emulsfiers such as the mill employed by Trainor.
7. Akashe is directed to an egg yolk composition and exemplifies
a process of using the egg yolk composition to prepare
mayonnaise products (Example 1).
8. The mayonnaise product of Akashe’s Example 1 is free of
starch (Table in Example 1, col. 6, ll. 19-28)).
9. To form the mayonnaise of Example 1, Akashe homogenizes
the emulsion in a rotor/stator device (Example 1, col. 6, ll. 7-
33).
C. Principles of Law
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727,
1734, 82 USPQ2d 1385, 1391 (2007). The question of obviousness is
resolved on the basis of underlying factual determinations including (1) the
scope and content of the prior art, (2) any differences between the claimed
subject matter and the prior art, (3) the level of skill in the art, and (4) where
in evidence, so-called secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966). See also KSR, 127 S.Ct. at
1734, 82 USPQ2d at 1391 (“While the sequence of these questions might be
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