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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