Appeal 2007-1678
Application 09/800,547
as set forth in the presently claimed invention. Moreover,
Trainor '084 cannot achieve the high throughput rates with its
colloid mill, in contrast to the present invention. As stated in the
Specification, it is impossible for colloid mills to achieve the
same high throughputs as those of the equipment of the present
invention, despite the common elements of stator and rotor.
(Br. 10).
Trainor does, in fact, describe forming a premix of the claimed raw
ingredients (FF 2) and feeding the resulting coarse emulsion to an in-line
mixer/emulsifier, i.e., a colloid mill (FF 1). While Trainor does not set forth
the details of the stator and rotor arrangement, Appellants do not dispute the
Examiner’s finding that such a stator/rotor arrangement is taught or
suggested by Ross (Br. 11). Therefore, the question is: Would it have been
obvious to one of ordinary skill in the art to use the rotor/stator of Ross in
the mill of Trainor? We determine that Appellants have not shown that such
a combination is nonobvious. Trainor discloses the use of a mill with a rotor
and stator (FF 5). Ross describes a rotor and stator arrangement for use in
the same type of mill (FF 6). Appellants have not shown that the use of a
mixer/emulsifier or colloid mill with the known rotor and stator of Ross is
more than the predictable use of prior art elements according to their
established functions. See KSR, 127 S. Ct. at 1739-40, 82 USPQ2d at 1395-
96 (The question to be asked is “whether the improvement is more than the
predictable use of prior art elements according to their established
functions.”).
With respect to texture characteristics discussed in Appellants’
argument, it is unclear what claimed characteristics Appellants are
referencing. Claim 1 does not disclose texture characteristics and the
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