Appeal No. 1996-4109
Application No. 08/123,557
Claim 15:
Appellant states (Brief, page 10) “[m]ost of the arguments pertinent to claim
14 … supra, are also pertinent here.” We note that claim 15 requires mixing
psyllium and shortening, and then adding inter alia water. With regard to the
combination of psyllium and water, appellant points out (Brief, bridging paragraph,
pages 8-9) that “the prior art suggests that one must be careful about water and
psyllium ... [i]ndeed, Wullschleger et al., solves this problem … by precooking the
psyllium [or using] … precooked psyllium nuggets.” Appellant notes (Brief, page 9)
the teaching away from the claimed invention in the Pflaumer reference
“incorporating psyllium into a cookie involves more than just mixing the desired
amount of psyllium into a conventional cookie composition. If psyllium is added this
way, the psyllium will hydrate and result in a less than palatale cookie.” Appellant
further notes (Brief, page 10) that the Colliopoulos recipe at column 6 and examples
1-4 contain no moisture. Appellant emphasizes (Brief, page 10) that “to go contrary
to what is expressly taught, and still produce a palatable product – as applicant did
– clearly is contrary to the art.”
We remind the examiner again that, if the applicant comes forward with
reasonable rebuttal … the entire merits of the matter are to be reweighed. In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
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