Ex parte Grocholski

Board of Patent Appeals and Interferences

Oct 28, 1999

08354747 (B.P.A.I. Oct. 28, 1999)

Application for patent filed December 8, 1994. 1
According to appellant, this application is a continuation of
Application 08/018,243, filed February 16, 1993, now
abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 38
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte VLADIMIR GROCHOLSKI
__________
Appeal No. 1996-3871
Application 08/354,7471
__________
ON BRIEF
__________
Before JOHN D. SMITH, GARRIS, and ELLIS, Administrative Patent
Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 1996-3871
Application No. 08/354,747
2
This is a decision on an appeal from the final rejection
of product claims 44 through 51. The only other claims
remaining in
the application, which are process claims 1, 3, 8, 9, 11
through 13, 32 through 39 and 41 through 43, have been allowed
by the examiner.
The subject matter on appeal relates to the product
produced by the process defined in certain of the
aforementioned allowed claims.
The references set forth below are relied upon by the
examiner in the section 102 and section 103 rejections before
us on this appeal:
Sorensen 4,790,995 Dec. 13,
1988
Aung et al. (Aung) 5,227,183 Jul. 13,
1993
(filed Jul. 25, 1991)
Copson, “Microwave Heating In Freeze-Drying, Electronic Ovens,
and Other Applications,” The AVI Publishing Company, Inc., pp.
249-250, 1962.
All of the claims on appeal stand rejected under 35
U.S.C.
Appeal No. 1996-3871
Application No. 08/354,747
The appealed claims will stand or fall together; see2
page 4 of the brief and page 2 of the answer.
3
§ 102(b) as being anticipated by or under 35 U.S.C. § 103 as
being obvious over Sorensen, Aung or Copson. 2
We refer to the brief and to the answer for a complete
exposition of the opposing viewpoints expressed by the
appellant and the examiner concerning the above noted
rejections.
OPINION
We will sustain these rejections for the reasons well
stated by the examiner in his answer. We add the following
brief comments for emphasis only.
It is the appellant’s basic position that the here
claimed products, which are dehydrated biological products
such as food products, retain substantially the flavor and
aroma of the natural (i.e., undehydrated) biological products
by virtue of the process defined in certain of the allowed
claims as explained on pages 27 and 28 of the subject
specification (e.g., see the first sentence in the paragraph
Appeal No. 1996-3871
Application No. 08/354,747
4
bridging specification pages 27 and 28) and accordingly that
these claimed products are different from and patentable over
the products of the applied prior art. However, the laudatory
comments made by the appellant regarding the retained flavor
and aroma of his dehydrated products are strikingly similar to
the laudatory comments made in the applied references
regarding the food products described thereby (e.g., see the
Abstract of the Aung patent). Thus, the record before us
reflects that the here claimed products are indistinguishable
from the applied prior art products.
Furthermore, as explained by the examiner in the answer,
it is the appellant’s burden to prove that these prior art
products do not necessarily or inherently possess the
characteristics of his claimed product. In re Best, 562 F.2d
1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Whether the
rejection is based on 35 U.S.C. § 102 or 35 U.S.C. § 103,
jointly or alternatively, the burden of proof is the same, and
its fairness is evidenced by the inability of the Patent and
Trademark Office to manufacture products or to obtain and
compare prior art products. In re Best, 562 F.2d at 1255, 195
Appeal No. 1996-3871
Application No. 08/354,747
5
USPQ at 433-434. On the record before us, the appellant has
not even shouldered much less carried his burden of proof.
Under the circumstances recounted above, it is apparent
that the examiner’s section 102 and section 103 rejections of
the claims on appeal over the Sorensen, Aung and Copson
references must be sustained.
The decision of the examiner is affirmed.
Appeal No. 1996-3871
Application No. 08/354,747
6
No time period for taking any subsequent action in
connection with this appeal may be extended under
37 CFR § 1.136(a).
AFFIRMED
John D. Smith )
Administrative Patent Judge )
)
)
)
Bradley R. Garris ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Joan Ellis )
Administrative Patent Judge )
tdc
Appeal No. 1996-3871
Application No. 08/354,747
7
David L. Garrison
2001 Sixth Avenue, Suite 3300
Seattle, WA 98121-2522