Appeal No. 2006-3157
Application No. 10/417,608
The patentability of claims 2, 3, 5-13, and 16-22 stands or falls with the
patentability of claim 1. Therefore, the rejection of claims 2, 3, 5-13, and 16-22 as being
anticipated by Banks is also affirmed.
C. Rejections under 35 U.S.C. § 103(a)
1. Claim 4
Claim 4 reads as follows:
The composition of claim 1 wherein the encapsulated basic chemical
leavening agent comprises soda bicarbonate encapsulated in vegetable oil.
The examiner indicates that Banks does not disclose the limitation recited in claim
4. Nevertheless, the examiner maintains that it would have been obvious to one skilled in
the art to encapsulate the soda bicarbonate in vegetable oil because it is well known in the
art to encapsulate a leavening agent in vegetable oil. Answer, p. 5.
The appellant does not dispute that it would have been obvious to one of ordinary
skill in the art to encapsulate soda bicarbonate in vegetable oil. Rather, the appellant
notes that claim 4 depends from claim 1 and argues that certain limitations in claim 1 are
not suggested by the teachings in Banks. See Brief, pp. 18-22.
We decline to address the appellant’s arguments relating to the obviousness of
claim 1 in view of the teachings in Banks because claim 1 is not rejected under 35 U.S.C.
§103(a). See Answer, p. 9 (“appellant’s grouping of claim 1 within the argument for the
103 rejection is not understood because claim 1 is rejected under 102”).
The appellant does not dispute the obviousness of “soda bicarbonate encapsulated
in vegetable oil” as recited in claim 4. Therefore, the rejection of claim 4 under 35
U.S.C. §103(a) as being obvious over Banks is affirmed.
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