Appeal No. 2005-1598
Application 10/103,162
syrup can be present and illustrates its use in the Example composition in an amount falling
within the claimed weight percent range which has a lower limit of “about 2” weight percent.
We find that the humectants dextrose and invertose are present in the Scherwitz Example
composition in amounts, separately and combined, falling within the weight percent range for
“glycerine” in each of these claims. As we discussed above, the use of different humectants for
the same purpose to obtain the same and similar results was within the ordinary skill in this art.
Accordingly, appellants have not established by argument alone that the compositions with the
attendant properties taught by Scherwitz, including that of the Example, would not be
“sufficiently fluid” to permit “dipping” the warmed food product in the topping composition at
the specified temperature and the topping composition “adhering” thereto to the extent claimed.
Turning now to the evidence relied on by appellants, the evidence in the specification and
the declaration is based on the same first inventive composition at specification page 24 and the
comparative composition representing Scherwitz at specification page 25, with the evidence in
the specification further including the second inventive composition at specification page 25
which is not in the declaration.8 These three compositions were compared with respect to
viscosity at 0°F with the results reported at specification page 26 (see page 25, ll. 4-8), which, as
the examiner finds, is not accompanied by an explanation correlating the results with the
requirements in the claims with respect to “sufficient fluidity” as defined by “dipping” and
“adhering” at and slightly above 32°F and at 77°F, there being no limitation with respect to
viscosity in the claims.
The first invention composition and the comparative composition representing Scherwitz
are compared in the declaration with respect to viscosity at 32°F with the results reported at ¶ 6.
The two compositions were further compared with respect to “sufficient fluidity.” In this latter
respect, the declaration includes the visual observation that, at 32°F, the first inventive
composition allows “a relatively soft dough product to be dipped into the low viscosity, fluid
topping, such that the topping flows and coats the dough product and adheres to the dough
product, without damaging the dough product” while the composition representing Scherwitz “is
not ‘dippable’ as described and claimed” (¶¶ 5. and 7.). The declaration includes the further
8 Appellants do not rely on Examples 3 and 4 at specification page 25.
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