Appeal No. 1997-2014
Application No. 07/959,995
On the other hand, it is appropriate that we sustain the
examiner’s § 103 rejection of claims 1 through 11 and 13
through 19 as being unpatentable over Dobbin in view of Fahlen
and Matz.
Notwithstanding the appellant’s arguments to the
contrary, it is our opinion that Fahlen would have suggested
to one with an ordinary level of skill in the art substituting
a fruit material such as fruit paste for the oil used in
Dobbin’s “Applesauce Cake” recipe based upon a reasonable
expectation of success. This suggestion and expectation of
success would have arisen from Fahlen’s teaching of desirably
and successfully replacing fat with fruit paste in a bread
product (e.g., see lines 17 through 23 and 26 through 38 in
column 1). While we appreciate the appellant’s point that
such products are distinct from cake products of the type
under consideration, an artisan with ordinary skill would have
considered the benefits associated by Fahlen with this
replacement (e.g., a more healthy food product while
maintaining flavor and processability) as being applicable to
cake products of the type taught by Dobbin.
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