Appeal No. 2003-1754
Application No. 09/821,137 Page 17
rebuttal of appellants’ arguments and evidence concerning such
steps. We note that claim 509 depends from claim 46.
Independent claim 46 was found unpatentable for reasons discussed
above. Claim 50 additionally requires:
wherein said central filling includes a layer of
jelly with a given shape, a first layer of peanut
butter below said jelly layer and larger than said
given shape to include a surrounding first exposed
surface of peanut butter and a second layer of peanut
butter above said jelly layer and larger than said
given shape to include a surrounding second exposed
surface of peanut butter with said peanut butter
exposed surfaces sealed together to encapsulate said
jelly layer by said peanut butter layers.
Appellants (brief, page 19) further maintain that the
applied prior art does not teach or suggest (1) “applying a layer
of peanut butter,” (2) “applying a layer of fruit spread over the
peanut butter leaving a perimeter of uncovered peanut butter,”
9 We consider claim 50 to be a representative claim for this
grouping of claims. Concerning appellants’ reference to the
features of the other claims of this group at pages 33 and 34 of
the brief, we do not consider the references to some of the
limitations recited in those claims as a separate argument for
the patentability of those dependent claims. See 37 CFR
§ 1.192(c)(7)(2002); and In re McDaniel, 293 F.3d 1379, 1383, 63
USPQ2d 1462, 1465 (Fed. Cir. 2002). To the extent those claims
could have been considered as having been separately argued
elsewhere in the briefs, we do not find those arguments
persuasive for reasons set forth in this decision in discussing
the teachings of the applied references and the reasonable
inferences that one of ordinary skilled in the art would draw
therefrom and for the reasons expressed in the examiner’s answer.
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