Appeal No. 1996-3802
Application 08/296,790
The appealed claims as represented by claim 9 are drawn to a white food casing comprising the
specified amounts of titanium dioxide and a water insoluble violet pigment in regenerated cellulose which
is sufficient to impart an optical density of at least about 0.6. According to appellants, the combination
of the titanium dioxide and a water insoluble violet pigment in the specified amounts provides a food
casing that “is nearly pure white in color” and “usually has an optical density at least as high as a similar
food casing containing fifteen percent more titanium dioxide pigment and no violet pigment”
(specification, page 5).
The reference relied on by the examiner is:
Balser et al. (Balser) 4,336,828 JUN. 29, 1982
The examiner has rejected all of the appealed claims under 35 U.S.C. § 103 as being
unpatentable over Balser (answer, pages 3-4). We reverse.
Rather than reiterate the respective positions advanced by the examiner and appellants, we refer
to the examiner’s answer and to appellants’ principal and reply briefs for a complete exposition thereof.
Opinion
We have carefully reviewed the record on this appeal and based thereon find that we cannot
agree with the examiner that the claimed food casing encompassed by appealed claim 9 would have
been prima facie obvious over Balser to one of ordinary skill in this art at the time the claimed invention
was made.
The dispositive issue in this appeal is whether one of ordinary skill in this art following the
teachings of Balser would have arrived at a food casing containing the specified amounts of a titanium
dioxide pigment and a water insoluble violet pigment sufficient to impart an optical density of at least
about 0.6. The examiner points out, in this respect, that Balser discloses that in addition to the titanium
dioxide containing “metallic pearlescent (white) luster pigment . . . [c]oloring substances may be used to
increase the contrast with the metallic pearlescent flake pigment and it is disclosed that a wise variety of
pigments and coloring agents may be used” such “that it is within the ordinary skill in the art to be able to
mix and match [pigments and coloring agents] to achieve a desired color,” citing col. 4, lines 31-50, and
col. 11, lines 32-55 (answer, pages 3-4; see particularly Balser, col. 4, lines 31-39). The examiner
further finds that Balser discloses that the food casings thereof have a “light-shielding function” (id., page
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