Appeal 2007-2191
Application 10/284,553
1356, 1361, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006)(“The motivation need
not be found in the references sought to be combined, but may be found in
any number of sources, including common knowledge, the prior art as a
whole, or the nature of the problem itself.”); In re Bozek, 416 F.2d 1385,
1390, 163 USPQ 545, 549 (CCPA 1969)(“Having established that this
knowledge was in the art, the examiner could then properly rely, as put forth
by the solicitor, on a conclusion of obviousness ‘from common knowledge
and common sense of the person of ordinary skill in the art without any
specific hint or suggestion in a particular reference.’”). Any analysis
supporting obviousness, however, should be made explicit and should
“identify a reason that would have prompted a person of ordinary skill in the
art to combine [known] elements” in the manner claimed. KSR, 127 S. Ct. at
1739, 82 USPQ2d at 1396.
Applying the above principles of law, we determine that the prior art
references relied upon by the Examiner would have suggested the claimed
extruded starch-based long-lasting dog chew. Specifically, we find that
Dempsey teaches that its initial mouldable dog food (dog chew) ingredients
include, inter alia, 35-84% by weight of starches (corn, wheat, rice, tapioca
potato, oat, sugar beet), 0-10% by weight of fat, 0-5% by weight of flavoring
agents, and 15-20% by weight of water (pp. 2 and 4-6). We find that
Dempsey teaches extruding these ingredients at a temperature between 75°
C to 125° C “until all the starches have been gelatini[z]ed…” (p. 13). We
find that the final dog chew product, according to page 14 of Dempsey,
contains, inter alia, 35-84% by weight of gelatinized starches, 0-10% by
weight of fat, 0-10% by weight of flavoring agents (including glycol), and
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