Appeal No. 1997-0219
Application No. 08/254,457
product having discrete unmixed separately colored yogurt phases. The difference in
viscosity between yogurt phases is less than about 3,000 cps. Likewise, the product
claims (22 through 26, 28, 29) require a first yogurt phase disposed within a substantially
opaque container having a first color and a viscosity from about 15,000 to 30,000 cps at a
temperature of about 41° F + 3.6°; and a second yogurt phase disposed within the
container "in direct physical contact" with the first yogurt phase, where the second phase
has a color distinct from the first color, and also has a viscosity from about 15,000 to
30,000 cps at a temperature of about 41° F + 3.6°. Again, the difference in viscosity
between the first and second yogurt phases is less than 3,000 cps.
Japanese Kokai No. 64-16553 discloses a method for manufacturing a multicolor
patterned yogurt where the yogurt thus obtained has a viscosity of at least 1,000 cps at 5°
to 20°C. We have reviewed this reference in its entirety, including page 8, Table 1 of the
English translation of record, summarizing the results of Practical examples 1 through 6
and Comparative Examples 1 through 8. The highest viscosity set forth in Table 1 and,
indeed, in the entire reference, is 4,000 cps at 5°C during packing for Practical Example 3.
The examiner's position to the contrary, notwithstanding, Japanese Kokai No. 64-
16553 constitutes insufficient evidence to support a conclusion of obviousness of
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