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Ex parte SCHUPPAN - Page 5
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Board of Patent Appeals and Interferences > 1997 > Ex parte SCHUPPAN - Page 5
Appeal No. 95-0517
Application 07/867,049
top of cakes and the like during burning, the wicking component
of Nisshin's candle is combustible, not non-combustible, as
required by claim 1. (See page 3 of the English translation,
last paragraph, where it is disclosed "[s]aid wick (3) is
composed of a burnable, edible substance.".)
Hoogeveen is even more removed from the requirements of
claim 1 than Nisshin. Hoogeveen discloses an edible colored
pencil, not a wick or candle, which center portion does not
contain a material that is either fine granular or powdered,
or non-combustible. In addition, although the examiner states
that the crayon of Hoogeveen would inherently or obviously
maintain a flame, the examiner has not provided factual
support for this conclusion. Even though the crayon of
Hoogeveen may comprise materials that in and of themselves are
flammable, there is no teaching or suggestion in Hoogeveen
that the edible colored pencil has the necessary thickness,
configuration and composition for the casing and filling to
maintain a flame in a still room, as required by claim 1.
Indeed, Hoogeveen offers no hint that the colored pencil may
also serve as a candle. It is well settled that a
determination of inherency cannot be established by
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Last modified: November 3, 2007
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