Appeal No. 1998-1893
Application 08/088,125
lines 16-17).
Wittwer does not state that the “horizontal flat surfaces
and the like” to which the edible polymeric film forming solution
is applied can be a flexible sheet. However, Wittwer’s marked
edible polymeric film is made of the same material as the
appellant’s film, is formed like the appellant’s film on a
substrate from which it is peeled off, has a thickness within a
range which encompasses the appellant’s preferred range, and is
attached to a foodstuff using a material which can be the same
material used by the appellant, i.e., water. Consequently, even
if the substrate on which Wittwer’s edible polymeric film formed
is inflexible, Wittwer’s decorated foodstuff reasonably appears
to be the same or substantially the same as a decorated foodstuff
encompassed by the appellant’s claim 20.
Whether a rejection is under 35 U.S.C. § 102 or § 103, when
the appellant’s product and that of the prior art appear to be
identical or substantially identical, the burden shifts to the
appellant to provide evidence that the prior art product does not
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