Appeal No. 2004-0736
Application No. 09/871,334
skill in this art, especially in view of the absence of definitions
or guidelines in the specification, we determine no difference
between the “freshly harvested” fruits and plants of appellants’
claim 1 and the fruits and plants disclosed by Stahl. See In re
Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997).
Additionally, we note that Stahl teaches use of small pieces of the
fruit or seed in the flavoring coating (page 7), and the advantages
of using fruit and/or seeds as fresh as possible would have been
obvious to one of ordinary skill in this art.
Appellants argue that Cherukuri and Song provide no teaching
or suggestion of the use of freeze-dried flavoring agents in a
tablet (Brief, pages 5-7). This argument is not persuasive. As
discussed above, Stahl teaches incorporation of freeze-dried
flavoring agents in a coating surrounding the tablet or core of gum
material to produce a better stability of the flavor agent as well
as an increased effect of the flavor (abstract; page 2, ll. 14-18;
and page 14, ll. 21-28). Claim 1 on appeal uses the transition
term “comprising,” thus the claim is open to include the coating of
Stahl, as long as flavoring agents are also incorporated within the
tablet. See Vehicular Techs. v. Titan Wheel Int’l, Inc., 212 F.3d
1377, 1383, 54 USPQ2d 1841, 1845 (Fed. Cir. 2000). Appellants
disclose that the edible tablet of the present invention can
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