Appeal No. 1997-2014
Application No. 07/959,995
appellant. Clearly, however, these cake samples were limited
to specific ingredients and proportions and thus much more
narrow in scope than the appealed claims. Indeed, in the
appellant’s submission “What was Learned from the baking
experiments” (referred to in the paragraph bridging pages 16
and 17 of the Brief), it is stated (apparently by the
appellant) “you must have a high acidic fruit that employs
LOTS of flavor in the cake and in chunk form, this is what
differentiates my cakes from all the rest” (see the last
sentence of this submission). Significantly, none of the
appealed claims are limited to high acidic fruit in chunk
form. It follows that the affidavit evidence of
nonobviousness, even when viewed in its most favorable light,
is considerably more narrow in scope than the here claimed
subject matter and accordingly that this evidence is not
sufficient to rebut the prima facie case of obviousness
established by the Dobbin, Fahlen and Matz references. In re
Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA 1979).
In addition, it is questionable whether the flavorful
taste referred to in these affidavits would have been
unexpected to one with an ordinary skill in the art. This is
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