Appeal No. 95-3870
Application 07/993,551
The reference relied upon by the examiner is:
Grabauskas et al. (Grabauskas) 603,307 Aug. 9, 1960
(Canadian Patent)
In addition, the examiner relies upon so-called “admitted prior art” identified as
appearing at page 1-9, 15 and 16 of the supporting specification. The examiner also
relies upon statements made in a declaration filed under 37 CFR § 1.132 by co-appellant
Jeffrey Sherry.
Claims 1 through 41 stand rejected under 35 U.S.C. § 103. As evidence of
obviousness, the examiner relies upon Grabauskas, the so-called admitted prior art and
the Sherry declaration. We reverse.
DISCUSSION
Claim 1 is directed to a process for making small diameter skinless frankfurters.3
For the purposes of deciding the issues raised in this appeal, we need only to consider
that aspect of the claimed invention which involves the casing used in the claimed
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process. As set forth in claim 1 on appeal, the casing is to have adjacent first and
second longitudinal portions. A colorant or opacifier is dispersed in at least one of the
portions to provide that portion with optical values which differ from the other portion. The
The preamble of claim 1 indicates that the claim is directed to making frankfurters. However,3
steps d) and e) of claim 1 result in a formation and packaging of a “sausage.” Whatever difference in scope
may exists between these two terms has not effected our ability to reach a decision on appeal. however,
upon return of the application, we urge appellants and the examiner to review all the claims on appeal and
ensure that the terms used within are consistent.
4 Claim 40 is the other independent claim on appeal and defines the casing in a similar manner.
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