Appeal No. 2006-1027
Application No. 09/865,074
examiner has established a prima facie case of obviousness in view of the reference
evidence. Based on the totality of the record, including due consideration of appellants’
arguments, we determine that the preponderance of evidence weighs most heavily in
favor of obviousness within the meaning of section 103(a). Therefore we affirm the
examiner’s rejection of claims 21-23, 25, 27 and 33 under section 103(a) over Willard.
With regard to the rejection of claims 24, 26 and 28-32 under section 103(a) over
Willard in view of Holm, the examiner finds that Willard does not disclose the snack chip
having the surface features as claimed (Answer, page 5). The examiner applies Holm
for its teaching of snack products having a predetermined level of surface bubbling
achieved through adjustment of the initial dough moisture, the thickness of the dough
sheet, and the drying environment (id.). From these findings, the examiner concludes
that it would have been obvious to one of ordinary skill in the art at the time of
appellants’ invention to adjust the parameters as taught by Holm to obtain a snack
product having any desired distribution of bubbling and surface characteristics (Answer,
pages 5-6). We agree.
Appellants argue that Holm teaches production of controlled surface bubbling by
use of a three step process, including baking before frying (Brief, page 6). Appellants
argue that neither reference teaches the claimed characteristics as result effective
variables, and Holm “teaches away” from the invention by using process parameters to
control bubble formation whereas appellants control bubble formation by composition
parameters (Brief, pages 6-7).
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