Appeal No. 1999-0674
Application No. 08/654,536
The formation of the channel in Hayachi’s bread product is reinforced by our prior
analysis of the Rheon dispenser and our discussion of appellant’s concessions regarding the
Rheon dispenser. As noted in our review of the examiner’s rejection, 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” is a
method limitation. It therefore is not entitled to weight in determining the patentability of the
product claims on appeal in this case. See In re Thorpe, 777 F.2d at 697, 227 USPQ at 966.
In any case, even if it were required to give this limitation weight in determining the patentability
of claims 17 and 23, the insertion of Hayachi’s spout into the bread product will inherently push
aside some interior dough to meet the limitation that the border area of the channel is in a
“pushed aside condition.” Furthermore, 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 to utilize that equipment in the Hayachi apparatus to prepare the
bread product in the Hayachi patent. With regard to claim 23, one of ordinary skill in the art
would have recognized that a curved channel is advantageously formed in a toroidal bread
product in light of Edhard’s teaching of filling a donut and utilizing a curved filling spout as
discussed supra.
With further regard to claim 23, bread products having a toroidal shape are well known
in the art. Furthermore, the Edhard metering system pamphlet recognizes a toroidal bakery
product shape as an alternative to an elongated shape. This evidence taken collectively would
statements. Accordingly copies of these references are not included with this decision.
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