Appeal No. 2003-1266
Application No. 09/735,054
See In re Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d
1281, 1285 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705,
222 USPQ 191, 196 (Fed. Cir. 1984). Second, the appellants have
not established that the results obtained by their “trained
sensory technicians” are reliable and repeatable. Third, the
appellants have not established that the evidence shows an
unexpected difference in crunchiness and shelf life between the
inventive example and the comparative examples. See In re
Freeman, 474 F.2d 1318, 1324, 177 USPQ 139, 143 (CCPA 1973); In
re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
Reed ‘508 teaches that glycerine in a gum center coated with
hydrogenated isomaltulose, which is the coating used in Reed ‘453
(col. 2, lines 17-20), pulls moisture from the coating and
thereby reduces the shelf life of the gum by causing the coating
to soften and lose its desirable texture (col. 1, line 38 -
col. 2, line 3). This teaching indicates that the appellants’
observed improvement in crunchiness and shelf life when the
center is free of glycerin is an expected result rather than an
unexpected result. Fourth, the appellants’ comparative evidence,
which is limited to one inventive composition, is not
commensurate in scope with the claims. See In re Grasselli, 713
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