Appeal No. 1997-2257
Application No. 08/144,026
die’s configuration it is considered that
appellants are merely selecting a die
design of their choosing and as such the
claims are obvious in view of the prior
arts’ [sic] teachings.
In essence, it appears to be the examiner’s position
that, given the shape or configuration of appellants’ pretzel
chip, which the examiner indicates is novel (answer, page 14),
one of ordinary skill in the art would be taught by the
applied prior art how to use a die to produce that shape.
However, a rejection based on § 103 must rest on a factual
basis. In re GPAC, Inc., 57 F.3d 1573, 1582, 35 USPQ2d 116,
1123 (Fed. Cir. 1995). In the present case, we find no
evidence which would teach or suggest the particular dough
product recited in independent claims 14 and 18, namely,
concentric dough rings partially fused together. While the
portion of Reesman cited by the examiner would suggest dough
products having relief patterns other than that specifically
disclosed in Fig. 4, we do not consider that the fact that the
appellants’ pretzel chip may be characterized as having a
relief pattern, as the examiner has done on page 11 of the
answer, justifies a conclusion that the particular concentric
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