Appeal No. 1999-0674
Application No. 08/654,536
terms of the product claims is formed by the insertion of the filling spout into the bread product
as discussed supra. It is sufficient that the filling spout on the Rheon dispenser is capable of
penetrating a variety of bread products, including bagel products. Appellant is understood to
admit on page 3 of the reply brief that the Rheon dispenser is not limited to use with croissants.
Furthermore, the rejection of the product claims is not based on the
Rheon brochure alone. Instead, the rejection is based on the Rheon brochure and the Edhard
literature discussed supra. Since the prior art Edhard dispenser and filling spout equipment
selected by appellant were commercially available at the time of appellant’s invention, it follows
that the advantages of that equipment were also known in the art to provide the appropriate
motivation needed to inject foodstuff into bread products other than croissants.
With particular regard to claim 23, bread products having a toroidal shape are well
known in the art. Furthermore, the Edhard pamphlet identified as “Volumetric metering systems
for food, etc.” (hereinafter referred to as the Edhard metering systems pamphlet) recognizes a
toroidal bakery product shape as an alternative to an elongated shape. This evidence taken
collectively would have been ample motivation for one of ordinary skill in the art to provide a
bread product with a toroidal shape. In any case, since a toroidal bread product solves no
stated problem and has no unexpected result in appellant’s invention, the use of one shape or
the other would have been an obvious matter of design choice. See In re Kuhle, 526 F.2d at
555, 188 USPQ at 9. As a result, the recitation in claim 23 that the product has a toroidal
shape does not patentably distinguish the subject matter of claim 23 over the prior art.
We also disagree with appellant’s argument on page 7 of the main brief that claim 23
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007