Appeal No. 1999-0674
Application No. 08/654,536
sliced bagel or other bread product was solved prior to appellant’s invention. See, for example,
the U.S. Patent No. 5,236,724 issued to Alvin Burger on August 17, 1993, as well as the U.S.
Patent No. 4,963,377 issued to Paul Rimmeir on October 16, 1990.
After reviewing all of the evidence before us, we are satisfied that when all the evidence
is considered, including the totality of the evidence of nonobviousness, the evidence of
nonobviousness is insufficient to overcome the evidence of obviousness as in Ryko Mfg. Co. v.
Nu-Star, Inc., 950 F.2d 714, 719, 21 USPQ2d 1053, 1058 (Fed. Cir. 1991). We will
therefore sustain the § 103 rejection of claims 17 and 23. We will also sustain the § 103
rejection of dependent claims 18 and 24 because the patentability of these claims has not been
argued separately of their respective parent claims. See In re Nielson, 816 F.2d 1567, 1572, 2
USPQ2d 1525, 1528 (Fed. Cir. 1987) and In re Burckel, 592 F.2d 1175, 1178-79, 201
USPQ 67, 70 (CCPA 1979).
We will not sustain the § 103 rejection of method claims 1-8 and 28. The examiner has
not adduced sufficient evidence to establish that the particular filling
method defined in claim 1, the only independent method claim on appeal, would have been
obvious from the applied references. There is no teaching or suggestion in the applied
references of steps (b) and (c) in claim 1, namely the steps of moving the bagel product and the
spout relative to each other in a withdrawing direction to leave a portion of the channel free of
the spout, and then filling the free portion of the channel.
Under the provisions of 37 CFR § 1.196(b), the following new ground of rejection is
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