Appeal No. 2001-2486
Application 08/670,885
Grillo et al. disclose a dry color concentrate.
The concentrate comprises 12-100% carbohydrate and 0-
81% plasticizer. The carbohydrate is selected from the
group consisting of corn syrup solids, maltodextrin,
tapioca dextrin, dextrose, sugar ect [sic]. . . ; a
combination of carbohydrate can be used. The
plasticizer includes glycerin. The concentrate can
include colorants. The concentrate is used to coat
food product. (see col. 2). The reference meets all
the limitations of the cited claims. Since it is used
to coat food product, it is an adhesive. The range of
starch claimed falls within the range disclosed in the
reference.
Office Action mailed April 22, 1999, Paper No. 17, paragraph
bridging pages 2-3; see Final Rejection, page 2, paragraph 3.
The examiner further maintains that because Grillo’s concentrate
is used to coat food products, “it inherently functions as an
adhesive.” Examiner’s Answer, page 3.
According to appellants, Grillo cannot anticipate the
invention because Grillo’s concentrate is not a hot melt
composition. Appeal Brief, page 5. In support of their
position, appellants rely on the Rule 132 Declaration of Dr.
Billmers (one of the named inventors) filed with appellants’
amendment after final (see Paper Nos. 21 and 23). According to
appellants, the data provided in Dr. Billmers’ declaration
demonstrates that a composition containing starch and glycerin as
taught by Grillo forms a liquid mixture when formulated in
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