Appeal No. 1997-0164
Application 08/349,300
projecting spikes 56 (see Bell, col. 4, ll. 3-10; Knechtel,
col. 5, ll. 28-41).
Dodge is directed to a popcorn coated with a thin candy
syrup (col. 2, ll. 4-8). The examiner has not established
what suggestion would have led the ordinary artisan to combine
this reference with the peanut brittle mixtures of Bell or
Knechtel. It is noted that the examiner appears to apply this
reference alone against claim 22 on appeal, which is in
product-by-process form (Answer, page 6). However, the
reference to Dodge, although exemplifying a popcorn bar (see
Figure 5), does not disclose or teach the limitations recited
in claim 22 that the popcorn has been compressed, that the
binder is a caramel syrup, or that a confectionary coating has
been drizzled on the top of the bar (see Dodge, col. 2, ll. 9-
13 and 24-28). Thus the examiner has failed to establish that
the prior art reasonably appears to disclose a product which
is identical to or only slightly different than the claimed
product.
In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA
1980).
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