Appeal No. 1999-2509
Application 08/752,917
particulate chocolate and particulate confectionery composition comprising a syrup into an
extruder to form and extrude a mixture in a non-pourable state through a die “forms a single vein
within the chocolate” (id., pages 5-6; emphasis supplied). After discussing the teachings of veins
or strands formed in confectionery compositions in Kehoe (“injecting a plurality of different
liquid flavor/dye compositions into a substantially homogeneous gum base or into a laminated or
coextruded composition;” abstract), Wedin (coloring or flavoring materials from “smaller
extrusion tube 13” are “injected into the ice cream moving through the large extrusion tube 11 as
a plurality of ribbons;” page 2, left col., lines 49-62) and Butcher (variegated extruder product
“made by feeding a first viscous product through a tube, rotationally introducing a second,
different viscous product into the first one while preventing homogeneous mixing;” abstract), the
examiner concludes that “[i]t would have been obvious to introduce the caramel or toffee buttons
of Mackey downstream of the introduction of the chocolate buttons but upstream of the die to
form multiple veins within the matrix material as taught by each of Kehoe, Wedin or Butcher”
(answer, page 6; emphasis supplied). In response to appellant’s arguments with respect to the
combinations of Mackey with each of the secondary references in the brief, the examiner states
as to each that the claims differ from Mackey in the recitation of more than one vein, each of the
secondary references disclose multiple, interspersed veins and thus it “would have been obvious
to produce a desired design” (id., pages 10 and 11). The examiner continues the “one vein”
theory of the coextrusion process of Mackey in discussing appellant’s “Bottom Line” (id., pages
11-12).
It is apparent that the examiner implicitly responded to appellant’s statement that “it is
not believed that there is any issue concerning whether or not Mackey co-extrusion would render
the claimed products obvious” (see above p. 8, discussing brief, page 20), by maintaining the
“one vein” view of the process of Mackey where “two or more fat-based materials may be co-
extruded” (see above p. 7, setting forth col. 5, line 36, in context). In response, appellant states
in the reply brief (page 4) that
10 In considering the disclosure of a reference, the definition of a term or the meaning of a phrase
must be construed within the context of the reference as interpreted by one of ordinary skill in
this art. See generally, In re Salem, 553 F.2d 676, 682-83, 193 USPQ 513, 518-19 (CCPA 1977).
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