Appeal No. 2003-1856
Application No. 08/879,322
We find that neither Queisser nor Wilkinson describes or
suggests any apparatus or process for measuring “fruit
particles,” and especially fruit particles “within a matrix
selected from the group consisting of a sugar matrix, a starch
matrix or a sugar and starch matrix,” as claimed. As such, the
combination of Queisser and Wilkinson could not have suggested
the instant claimed invention to the artisan, within the meaning
of 35 U.S.C. § 103.
The examiner uses a very broad definition of “fruit” to
include “a product of plant growth (as grain, vegetable, or
cotton)” (answer-page 18). Somehow, the examiner applies the
definition to the french fries, disclosed by Queisser, and
concludes that Queisser discloses the measurement of fruit
particles.
We agree with appellants that, in view of the instant
disclosure and the claimed limitation of the fruit being in a
matrix “of the kind used in fruit fillings, toppings, dairy
products, or cooked fruit products,” it is more reasonable to
accept the Webster’s New World Dictionary definition of “2. A
sweet and edible plant structure, consisting of a fruit (sense 5)
usually eaten raw, or as a dessert” or “5...The mature ovary of a
-7–
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