Appeal No. 95-4411
Application No. 08/125,504
See the office action entered August 18, 1994. However, the
presence of air pockets on the surface chip is a desirable
feature when one is attempting to duplicate the appearance and
color of a conventional deep fat fried potato chip. Moreover,
in the record before us, appellant has provided evidence in
declaration form from expert food panelists, who found that
chips produced by appellant’s process possess an air bubble
appearance. Moreover, that chips produced by appellant’s
process produce a product having “substantially the same
flavor, color, and crispness as deep fat fried potato slices,”
at least to the same extent that chips formed by the Yuan
process possess such characteristics is evident from the
declaration evidence of record. See, for example, page 5 of
the Weimer declaration.
While it is often been said that the mere omission of an
element or step together with its function does not produce a
patentable invention, it is also been held that it may be
unobvious to omit an element while retaining its function.
In re Edge, 359 F.2d 896, 899, 149 USPQ 556, 557 (CCPA 1966).
Here, appellant has provided evidence that the elimination of
a globular protein coating, as required by the prior art
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