Appeal No. 2003-1266
Application No. 09/735,054
The appellants argue that “the only example Reed provides
includes glycerin (Reed, col. 6, line 42 - col. 7, line 63)”
(brief, page 15). This argument is not well taken because
Reed ‘453 is not limited to its examples. See In re Fracalossi,
681 F.2d 792, 794 n.1, 215 USPQ 569, 570 n.1 (CCPA 1982); In re
Mills, 470 F.2d 649, 651, 176 USPQ 196, 198 (CCPA 1972).
The appellants argue that “according to Reed, if the center
contained hydrogenated starch hydrolysate, it would be combined
with another softener such as glycerin” (brief, page 15). This
argument is not convincing because the teachings in Reed ‘453
that glycerin is one of a number of softeners which are suitable
alone or in combination (col. 3, lines 12-16) and that glycerin
is optional (col. 3, lines 26-27) would have fairly suggested, to
one of ordinary skill in the art, use of the hydrogenated starch
hydrolysate in combination with one or more softeners other than
glycerin.
The appellants argue that inventive example 2 in their
specification shows that the claimed invention provides
unexpected improvement in crunchiness and shelf life (brief,
pages 15-16; reply brief, page 3). This argument is not
persuasive because, first, the appellants have not identified the
closest prior art and compared their claimed invention to it.
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