Appeal No. 2004-1508
Application No. 09/443,559 Page 4
structure that is continuous and surrounds the filling.” In
this regard, the examiner has not shown where in Heim there is
any teaching that the hole formed in the cake would nonetheless
result in a flowable filling that is sealed in a surrounding
continuous structure as called for in appellant’s claims. We
note that the examiner’s references to appellant’s drawing figure
7 is not persuasive of any disclosure in Heim that suggests the
claimed product. Moreover, to the extent that the examiner is
arguing that the claim 1 language should be interpreted as being
broad enough to permit “probe filling” holes therein as employed
by Heim, we disagree. While the claims are given their broadest
reasonable interpretation consistent with the specification, we
do not subscribe to the examiner’s viewpoint that the claim terms
should be construed as permitting open fill holes as in Heim for
the reasons outlined above and in appellant’s brief.
Consequently, we reverse the stated § 103(a) rejection over Heim
on this record.
Rejection over James
At the outset, we observe that appellant (brief, page 9)
states that the appealed claims stand or fall together.
Accordingly, we select independent claim 1 as the representative
claim on which we decide this appeal as to this rejection. See
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