Appeal No. 2003-1870
Application No. 07/770,054
apparent to us that patentee’s disclosure of possibly using
maltitol as a humectant in the soft and moist center of multi-
textured cookies would not have suggested adding maltitol as a
substitute for at least a portion of a fat-containing ingredient in
preparing a low-calorie, low-fat foodstuff.
As indicated in the above quotation, the examiner believes
that, “[s]ince the applied reference [i.e., Polizzano] contemplates
such varying recipes [,] it is considered that one recipe compared
to another involves a fat replacement” (Id). However, we do not
perceive and the examiner does not explain how the “varying
recipes” of Polizzano renders unpatentable the here-claimed method
including the step of adding a maltitol composition as a substitute
for at least a portion of a fat-containing ingredient as required
by appealed independent claims 1, 12 and 13.
The examiner’s afore-quoted exposition of the rejection before
us does not separately address with reasonable specificity any of
the individual claims on appeal including independent claim 17
which is directed to a low-calorie, fat-free salad dressing
containing a defined amount of maltitol. Apparently, the examiner
considers this last mentioned claim to be unpatentable because,
“[o]nce the art [i.e., apparently the Polizzano] recognizes the use
of maltitol in foods to serve a given function, then the use of
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