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Ex parte SCHUPPAN - Page 6
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Board of Patent Appeals and Interferences > 1997 > Ex parte SCHUPPAN - Page 6
Appeal No. 95-0517
Application 07/867,049
probabilities or possibilities, but it is incumbent upon the
examiner to establish the inevitability of the inherency
propounded. In Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326,
(CCPA 1981); In re Wilding, 535 F.2d 631, 635-36, 190 USPQ 59,
63-64 (CCPA 1976).
Consequently, we are constrained to reverse the
examiner's prior art rejection of claims 1-6 and 11.
The examiner's § 103 rejection of claims 7-10 is another
matter. Appealed claim 7 simply requires applying a mixture
of a fuel and an edible, fine granular or powdered, wicking
material to a foodstuff. Claim 7 does not require that the
wicking material be non-combustible. In our view, both
Nisshin and Hoogeveen disclose applying the claimed mixture to
a foodstuff. Nisshin's disclosure of applying wicks of rice
crackers and dried gourd shavings, which are mixtures of a
fuel, such as oil and fat, and an edible, granular material,
to a foodstuff such as cake meets the requirements of claim 7.
Hoogeveen meets the requirements of claim 7 by disclosing the
application of the pencil filling to foodstuffs such as
cookies and wafers, which fillings include edible oils and
fats which may contain crystals or small spheres such as sugar
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Last modified: November 3, 2007
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