Appeal No. 2006-3157
Application No. 10/417,608
Significantly, claim 27 does not specify the degree of encapsulation of the basic
chemical leavening agent. Furthermore, the appellant has not directed us to any credible
evidence which establishes that the encapsulated basic agent disclosed in Banks would
not be sufficiently encapsulated to impart refrigerator stability to the dough composition.
Likewise, the appellant has not directed us to any credible evidence which establishes
that the encapsulated basic agent disclosed in Banks would not be sufficiently
encapsulated to impart the claimed browning characteristics to the dough composition.
See Schulze, 346 F.2d at 602, 145 USPQ at 718 (arguments in the brief do not take the
place of evidence in the record).
The appellant also argues that Banks does not teach, motivate, or suggest
packaging a dough composition in low pressure packaging as discussed with respect to
the rejection of claim 14. Brief, p. 23. We disagree for the reasons set forth in affirming
the rejection of claim 14.
The rejection of claim 27 under 35 U.S.C. § 103(a) as being obvious over Banks
is affirmed. The patentability of claims 28 and 29 stands or falls with the patentability of
claim 27. Therefore, the rejection of claims 28 and 29 under 35 U.S.C. § 103(a) as being
obvious over Banks is also affirmed.
D. Suggested amendment under 37 CFR § 41.50(c)
Claims 1, 8, 16, and 21 are rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite for failing to particularly point out and distinctly claim the subject matter
(. . . continued)
Answer, p. 8 (“The rejection takes the position that the storage stability and browning characteristics are
inherent in the Banks et al dough because they disclose dough containing the same ingredients as
claimed.”). Therefore, we dismiss this argument as irrelevant.
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