Appeal No. 1997-0376
Application No. 08/199,104
This rejection cannot be sustained.
According to the examiner, the here-claimed mousse
product distinguishes over the admitted prior art mousse
product via the claim requirement that the pieces of chocolate
be sterilized and via the claim requirement that the pieces of
chocolate be comprised of the ingredients and amounts recited
in the appealed independent claims (see page 2 of the Answer
and pages 3 through 5 of the Office Action mailed November 10,
1994 as Paper No. 6). It is the examiner's basic conclusion,
however, that Kleinert and the Japanese reference would have
suggested modifying the admitted prior art mousse product in
such a manner as to result in a mousse product having these
features. We do not agree.
As correctly pointed out by the appellants, Kleinert
contains no teaching or suggestion of sterilizing chocolate of
any kind much less chocolate of the type here claimed for use
in a mousse product. Instead, Kleinert is directed to a
process for making chocolate which avoids a conching
Japanese reference as being limited to the English-language
Abstract thereof. As a consequence, we likewise will limit
our consideration of the Japanese reference to this Abstract
in assessing the merits of the examiner's rejection.
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