Appeal No. 1999-0674
Application No. 08/654,536
exclude a channel that may be formed in part by an air pocket. Indeed, the manner in which the
channel is formed is a method limitation and thus does not serve to patentably distinguish the
claimed product. In this respect, patentability of a product claim is based on the product itself
and not on the process by which the product was formed. See In re Thorpe, 777 F.2d 695,
697, 227 USPQ 964, 966 (Fed. Cir. 1985).
In the present case, the appealed product claims contain a method limitation relating to
the manner in which the channel is formed, namely the recitation in claims 17 and 23 that the
border area of the channel is “in a pushed aside condition caused by displacement of the softer
interior into said border area during formation of the channel.” Such a method limitation is not
entitled to weight in determining the patentability of the product claims on appeal in this case.
Id. Furthermore, even if it were required to give this limitation patentable weight, the insertion of
filling spout into the bread product in the Rheon brochure will inherently push aside some dough,
and the displacement of even “minor interior material” as noted on page 6 of the main brief is
sufficient to meet the method limitation quoted supra.
We are not unmindful of the arguments by appellant’s counsel that the foodstuff injection
pressure in the Rheon dispenser is insufficient to form a channel in bagel dough because of the
density of bagel dough (see pages 8 and 11 of the main brief and pages 3 and 7 of the reply
brief). These arguments are unpersuasive and are unsupported by any competent evidence
entered in the record before us.
In the Rheon dispenser, the formation of a channel in the bread product does not
depend on the foodstuff injection pressure. Instead, a channel of sufficient length to meet the
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