Appeal No. 1999-0674
Application No. 08/654,536
distinguish appellant’s claimed invention over the prior art. See In re Kuhle, 526 F.2d 553,
555, 188 USPQ 7, 9 (CCPA 1975).
Furthermore, the properties of bagel dough vis-à-vis croissant dough is well known in
the prior art, making the substitution of one for the other obvious within the meaning of 35
U.S.C. § 103. See In re Ludtke, 441 F.2d 660, 664, 169 USPQ 563, 567 (CCPA 1971).
Given the knowledge of the properties of bagel dough, such a substitution does not involve a
so-called “obvious to try” issue as argued on page 12 of the main brief.
For the reasons discussed supra, we disagree with appellant’s argument on page 9 of
the main brief that “[a]side from the cover page photograph, all the pictures [in the Rheon
brochure] show the croissant sliced open with foodstuff deposited at the sliced open portion.”
Moreover, none of the product claims excludes a sliced product. In any
case, the photograph on the front of the cover page of the Rheon brochure is sufficient to
support the rejection of the product claims.
Appellant’s arguments relating to the length of the channel in the bread product (see
pages 6, 7, 14, 15 and 16 of the main brief) are not persuasive. In the first place, claim 17 does
not recite that the channel “extends at least as long as a majority of the length of the bagel” as
argued on page 7 of the main brief. Instead, claim 17 more broadly recites that the channel
extends “by a distance at least as long as a majority of a length of said elongated outer surface, .
. .” (emphasis added). The recitation of “a length” may be any length and thus is not limited to
the entire length of the outer surface. Thus, the language relating to the length of the channel in
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