Appeal No. 2003-1870
Application No. 07/770,054
maltitol in other food products [i.e., apparently low-calorie, fat-
free salad dressing] for the same function would be [sic, would
have been] within the skill of the art” (Id.). Contrary to the
examiner’s apparent belief, Polizzano’s use of maltitol as a
humectant in multi-textured cookies would not have suggested using
maltitol in a low-calorie, fat-free salad dressing “for the same
function” (Id.), namely, as a humectant. In short, there is simply
nothing in the Polizzano reference or for that matter the Olinger
reference, considered alone or in combination, which would have
suggested a low-calorie, fat-free salad dressing containing
maltitol in an effective amount to impart to the salad dressing
substantially the same organoleptic properties compared to a salad
dressing having a fat content as required by appealed independent
claim 17.
Under the circumstances recounted above (as well as in the
brief and reply brief), it is our determination that the examiner
has failed to carry the examiner’s initial burden of establishing a
prima facie case of obviousness with respect to somehow combining
the Polizzano and Olinger references in such a manner as to result
in the subject defined by the appealed claims. See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). We
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