Appeal No. 1999-2509
Application 08/752,917
We find that one of ordinary skill in this art would have given the terms “co-extrusion”8
and “fondant”9 their ordinary dictionary meanings in considering the plain teachings of
Mackey.10
In the brief, appellant acknowledges that “Mackey discloses processing a particulate
starting material, which may be a chocolate, or caramel, or toffee, . . . [and] further discloses that
two or more fat-based materials may be co-extruded and also that ‘the fat-containing material
may be coextruded ‘with other food materials’, such as ice creams fondants etc., such being
advantageous when fat-containing confectionery material is extruded in a hollow or tubular form’
by employing a multi-orifice die and/or associated equipment” (pages 7-8). In discussing the
ground of rejection based on Mackey, appellant states that “it is not believed that there is any
issue concerning whether or not Mackey co-extrusion would render the claimed products
obvious,” and “should the understanding that the Mackey co-extrusion disclosure is not in issue
be incorrect, it is requested that the Examiner so advise” (id., page 20). After discussing the
separate combinations of Mackey and each of Kehoe, Wedin and Butcher, appellant’s “Bottom
Line” is that the position that “the Examiner has advanced in the context of the Mackey-based
rejections is that someone . . . could have obtained a product with veins in it” which “is not what
is claimed” (id., page 22).
The examiner finds that “Mackey discloses coextruding two or more fat-based materials
. . . [and] the use of toffee, caramel, and chocolate ‘buttons’ are disclosed,” and based on this
disclosure, concludes that “[i]t would therefore have been obvious to co-extrude the chocolate
and toffee or caramel chips or buttons of Mackey in the method of Mackey to produce a
confection having a single vein of toffee or caramel coated (i.e., within) chocolate as desired,”
noting that “Mackey teaches appellant’s extrusion process, with the exceptions . . . of the
presence of more than one vein within the chocolate” (answer, page 5; emphasis supplied). The
examiner then sets forth the view that in following the teachings of Mackey, the feeding of
8 See above note 3.
9 A “fondant” is “1. A sweet, creamy sugar paste used in candies and icings.” Webster’s II New
Riverside University Dictionary, page 520.
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