Ex parte YIGAL PELEG et al. - Page 5




                Appeal No. 95-1168                                                                                                             
                Application 07/951,992                                                                                                         


                         Claims 12-17 stand rejected under 35 U.S.C.  103 as being unpatentable over Petrizzelli in                           
                view Kriz.  The examiner finds that Kriz discloses a shortening useful in pastry comprised of liquid                           
                and plastic fats and, therefore, concludes that “it would have been obvious to one having ordinary                             
                skill in the art at the time the invention was made to use a combination of fats as disclosed by Kriz                          
                et al.  in the pastry of Petrizzelli et al. since Kriz et al. discloses such as conventional and well known                    
                in making pastry” (final rejection, 3, Paper No. 5).                                                                          
                                                                 Opinion                                                                       
                         We have carefully considered the respective positions advanced by appellants and the                                  
                examiner.  However, for the reasons set forth below, we will not sustain either of the examiner's                              
                rejections for obviousness under 35 U.S.C.  103.                                                                              
                         The examiner rejected claim 11 under 35 U.S.C.  103 as being unpatentable over Petrizzelli.                          
                It is well settled that every claim limitation must be considered in determining patentability.  In re                         
                Geerdes, 491 F.2d 1260, 1262-63, 180 USPQ789, 791 (CCPA 1974).  In response to the appellants’                                 
                arguments on appeal on pages 4 and 5 of the answer, the examiner stated that                                                   
                         ... it is clear from Petrizzelli that each of Appellant’s [sic] ingredients are disclosed by                          
                         Petrizzelli and are performing their art recognized function.  Accordingly, Appellant’s                               
                         [sic] have not shown any criticality to the amounts of other well known ingredients                                   
                         such as starch, flour, and water, and has therefore not overcome the prima facie case                                 
                         of obviousness since if the starch of Appellants [sic] formulation acts as a fat then the                             
                         starch of Petrizzelli will inherently perform the same function.                                                      
                While Petrizzelli appears to disclose a low fat pie crust or pastry dough composition because the fat                          
                content of Petrizzelli’s composition (15-25%) is encompassed by the composition defined by the                                 

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