Appeal No. 2003-1266
Application No. 09/735,054
The examiner argues: “The hydrogenated starch hydrolysate
used in Reed et al is alternative to aqueous sorbitol as a
sweetener. Hence, if hydrogenated starch hydrolysate is included
in the chewing gum of Reed et al, aqueous sorbitol would be
excluded therefrom (answer, page 4). This argument that the
presence of hydrogenated starch hydrolysate indicates the absence
of aqueous sorbitol is not persuasive in view of the teaching in
Reed ‘453 that “aqueous sweetener solutions such as those
containing sorbitol, hydrogenated starch hydrolysates, corn syrup
and combinations thereof” may be used (col. 3, lines 13-15).
Moreover, the examiner has not pointed out where Reed ‘453
discloses a center which not only does not contain aqueous
sorbitol, but also does not contain any other aqueous softener.
For the above reasons we find that the examiner has not
carried the burden of establishing a prima facie case of
anticipation of the appellants’ claimed invention by Reed ‘453.
We therefore reverse the rejection under 35 U.S.C. § 102(b).1
1 In the event of further prosecution, the examiner should consider
making a rejection under 35 U.S.C. § 103 over Reed ‘453.
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