Appeal No. 2003-1856
Application No. 08/879,322
flowering plant along with its contents, as the whole peach, pea
pod, etc.” (Reply brief-page 3).
As such, the french fried potatoes being inspected for color
in Queisser are “tubers” and not “fruit,” as claimed.
The examiner further contends that the type of food being
analyzed is a mere “design choice” (answer-page 19) since the
instant specification discloses no definite image analysis
specific to measurement of fruit particles within a starch and/or
sugar matrix. Moreover, the examiner contends that the type of
food being inspected, and whether or not it is within a starch
and/or sugar matrix is not critical to the operation of the
inspection or measurement system because the camera and the
computer will operate as intended even if the food product is not
within a starch and/or sugar matrix.
Again, we disagree with the examiner. As convincingly
pointed out by appellants, the camera and computer may very well
be operative with a food product that is not in a sugar and/or
starch matrix, but that is not the claimed invention. As argued
by appellants, their invention is “the discovery that it can be
used in the presence of such matrix” (reply brief-page 8).
Moreover, the instant specification does explicitly discuss,
at page 4, last paragraph to page 5, first full paragraph, how
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