Appeal No. 2004-1508
Application No. 09/443,559 Page 3
filling” (independent claim 1). While the examiner acknowledges
that Heim discloses a filled food that includes a hole in the
“food structure” that surrounds the filling, the examiner takes
the position that “there is no disruption in the structure”
(answer, page 4). Thus, the examiner is of the view that the
claim 1 language does not patentably distinguish over the product
of Heim because “[t]he hole is the same as the pores present in
the claimed product as shown in figure 7." Id.
Appellant, on the other hand, urges that the terms of the
claim 1 language quoted above are clear and understandable from
their plain meaning. Moreover, when claim 1 is read in light of
the specification (see, e.g., page 8, lines 12-16), it is
manifest, in appellant's view, that a throughhole1 in the
encasing food structure is not permitted by that language.
We agree with appellant because the examiner has not carried
the burden of establishing that the hole in the surrounding cake
made by the probe filling method of Heim would result in, or
otherwise suggest, a food product that is characterized by a
“flowable filling encased and sealed within a seamless food
1 Heim employs a probe (16, fig. 1) to fill a cake piece
with a filling, which results in a hole in the surrounding food
material that extends at least to the location of the filling
that is inserted there within.
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