Appeal No. 1999-0674
Application No. 08/654,536
entered against product claims 17, 18, 23 and 24:
Claims 17, 18, 23 and 24 are rejected under 35 U.S.C. § 103 as being unpatentable
over Hayachi et al. (“Hayachi”)6 in view of Burger (cited supra), the Edhard pamphlets (also
cited supra), the prior art Edhard equipment used by appellant (namely the Edhard dispenser
Model No. PS 4028 and the Edhard filling spout Model No. F-3090 as set forth on page 4 of
appellant’s specification) and the Rheon brochure (also cited supra).7
The Hayachi patent discloses a bread product which is filled with foodstuff by a
foodstuff dispensing apparatus having a filling spout 10. In Figure 5 of the Hayachi patent, the
bread product 36 is shown to have an elongated configuration. In any event, as stated supra,
the particular shape of the bread product is a matter of design choice and thus does not serve to
patentably distinguish the claimed product over the prior art. As described in column 5, lines
12-25, of the Hayachi specification the filling spout is first inserted into the bread product so
that, like appellant’s apparatus, the inclined discharge end of the spout will inherently form a
channel in the bread product before the filling is injected into the bread product. The stroke of
the foodstuff delivery piston 25 is then set (see column 5, lines 25-30 of the Hayachi
specification), and the piston is thereafter advanced to inject the foodstuff into the channel
formed by the spout (see column 5, lines 28-45 of the Hayachi specification). The channel
formed by insertion of the spout is of sufficient length to meet the terms of the product claims for
reasons discussed supra in our analysis of the Rheon brochure.
6 U.S. Patent No. 4,669,967 issued on June 2, 1987.
7 The Hayachi reference was made of record by appellant in the response (Paper No. 13) filed December 12,
1997 after the final rejection. The Burger reference was cited by the examiner during examination of this
application. The Edhard and Rheon references were made of record in appellant’s information disclosure
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