Appeal No. 1999-2494
Application No. 08/404,676
According to appellant, Errass does not disclose dough containing
(LTI) yeast and the only containers utilized for storing Errass'
dough is air-tight transparent plastic films. Id., page 10.
We are in agreement with appellant that the examiner has
failed to establish why one of ordinary skill in the art would
have been motivated to replace the dough in Perry's container,
which is not proofed prior to sealing, with an (LTI) based dough
product such as that of Domingues which is proofed prior to
sealing it in the container. Rather, it appears that the
examiner's proposed combination is based on improper hindsight
reconstruction. See W.L. Gore & Assocs. v. Garlock, Inc.,
721 F.2d 1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983), cert.
denied, 469 U.S. 851 (1984).
Accordingly, the rejection of claims 22, 23, 26 and 27 under
35 U.S.C. § 103 as unpatentable over Perry in view of Domingues
and further in view of Gysler or Errass is reversed.
Having found that Richardson, Reizaburo, Lorber and Umina
fail to remedy the deficiencies of the primary references for the
reasons set forth in appellant's brief (see pages 12-15), we also
reverse the rejections of claims 24, 25, 28 and 29, which depend
from claim 22.
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