Appeal No. 2003-1870
Application No. 07/770,054
seen how the claims define over that which is
taught by the art. The recipe requirements
taught by Polizzano obviously can vary with
differing fat requirements.
Since the applied reference contemplates
such varying recipes it is considered that one
recipe compared to another involves a
fat replacement. It is not seen how the
claimed requirement of replacing/substituting
can be relied upon to distinguish over the art.
Once the art recognizes the use of maltitol in
foods to serve a given function, then the use
of maltitol in other food products for the same
function would be within the skill of the art.
In the absence of unexpected results, it
is not seen how the claimed invention differs
from the teachings of the prior art.
Appellant’s claims are drawn to a combination
of known components which produces expected
results, see In re Kerkhoven 205 USPQ 1069 and
In re Gershon 152 USPQ 602.
This rejection cannot be sustained.
As correctly explained by the appellants in their brief and
reply brief, Polizzano contains no teaching or suggestion regarding
a low-calorie, low-fat foodstuff much less of adding a maltitol
composition when preparing such a foodstuff as a substitute for
at least a portion of a fat-containing ingredient. Instead, this
prior art reference is directed to multi-textured cookies having a
soft and moist center containing a humectant which is preferably
selected from humectant sugars but which also may be selected from
non-humectant sugars including, for example, maltitol. It is
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