Appeal No. 2003-1856
Application No. 08/879,322
as to coarseness or pebbliness, puff and crease, ridge and
valley, cuts, punctures, scrapes and splits, clear rot or sour
rot of the peel. Clearly then, Heck is interested in analyzing
the whole fruit and not the fruit particles, and especially in
fruit particles within a sugar and/or starch matrix, as specified
in the instant claims.
The examiner again tries to combine the primary reference
with Wilkinson for the teaching of a starch matrix but, for the
reasons supra, we do not find that the imaging of a starch matrix
itself, as in Wilkinson, would have led the artisan to employ
that teaching, in combination with Heck’s analysis of a whole
fruit peel, to result in the measurement of fruit particles in a
sugar and/or starch matrix, without having to remove the fruit
particles from the matrix, as required by the instant claims.
Sistler, applied by the examiner for its teaching of specific
tray characteristics, does not remedy the deficiencies of the
Heck/Wilkinson combination.
While the briefs and answer mention and argue the adequacy
of declarations under 37 CFR 1.131, filed May 23, 2000 and
February 13, 2001, for antedating the Queisser reference, we need
not consider the declarations because, in our view, the examiner
has not presented a prima facie case of obviousness with regard
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