Appeal No. 1998-1722
Application No. 08/527,018
appealed claim 1, we uphold the examiner’s rejection as to
appealed claims 1 through 3.
B. Claims 4, 6-9, 11, 12, 14, and 15
Regarding dependent claim 4 and independent claims 6 and
11, the appellants argue that Song does not disclose a method of
making chewing gum in a “high efficiency continuous mixer.”
(Appeal brief, pages 6-10; see also reply brief, pages 1-2.)
Other than to state that Song “clearly teaches the production of
chewing gum once the particular gum base has been produced”
(answer, page 7), the examiner offers no analysis or rebuttal.
Accordingly, we cannot uphold the examiner’s rejection as
to appealed claims 4, 6 through 9, 11, 12, 14, and 15.
C. Claim 5
As to appealed claim 5, we are in complete agreement with
the examiner’s position (answer, pages 5 and 9). In this
regard, when a product recited in a product-by-process claim
reasonably appears to be the same as or obvious from a product
of the prior art, the burden is on the applicants to show that
the prior art product is in fact different from the claimed
product, even though the products are made by different
processes. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966
(Fed. Cir. 1985).
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