Appeal No. 1997-0376
Application No. 08/199,104
As for the Japanese reference, the examiner points to
nothing and our independent study reveals nothing in the
Abstract thereof which would have suggested modifying the
admitted prior art mousse product in such a manner as to
result in the here-claimed invention. More specifically, this
Abstract contains nothing which would have suggested providing
the prior art mousse product with sterilized pieces of
chocolate comprised of the here-claimed ingredients and
amounts. Stated somewhat differently, nothing in the Abstract
would have suggested using the germ-free confectionary product
described therein as pieces of chocolate in the prior art
mousse described on page 1 of the appellants' specification.
Under these circumstances, it is our determination that
the only basis for combining the applied prior art in the
manner proposed by the examiner derives from impermissible
hindsight. W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d
1540, 1553, 220 USPQ 303, 312-313 (Fed. Cir. 1983), cert.
denied, 469 U.S. 851 (1984). For this reason, the rejection
advanced by the examiner in this appeal cannot be sustained.
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