Appeal No. 1999-0674
Application No. 08/654,536
claim 17 is broad enough to read on the filled channel in the Rheon bread product even if it is
assumed for the sake of argument that the channel in the Rheon bread product does not extend
the majority of the length of the croissant (see the argument on page 15 of the main brief).
On page 6 of the main brief, appellant concedes that the filling spout penetrates the crust
of the croissant in the photograph on the front of the cover page of the Rheon
brochure. Such a penetration unquestionably forms an opening in the outer surface of the
croissant and additionally forms a channel within the croissant.
Appellant nevertheless appears to argue on page 7 of the main brief that a channel is not
formed with a border area in a “pushed aside condition” upon the insertion of the filling spout
into a croissant because of “large air pockets” (main brief, page 7) or “a huge air pocket” (reply
brief, page 5) in a croissant such as the one shown in the photograph on the front side of the
cover page of the Rheon brochure. This argument is not persuasive for a number of reasons.
In the first place, while a croissant may have air pockets, the interior of the croissant is
not devoid of soft dough material. In fact, appellant seems to concede on page 6 of the main
brief that some interior material (i.e., dough) will be displaced by the insertion of the filling spout.
Such a displacement the interior soft dough is unavoidable and consequently inherent to result in
the formation of a channel for receiving foodstuff. It is even feasible that an air pocket is capable
of being formed by “pushing aside” some croissant dough material.
Furthermore, the appealed product claims are not drafted in such a way to exclude air
pockets, and bagel dough is not inherently devoid of any and all air pockets, which could occur
as a result of mixing the ingredients for the dough. In addition, the product claims do not
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