Appeal No. 2004-0736
Application No. 09/871,334
include a coating of freeze-dried flavoring agent to increase the
stability (specification, page 12, ll. 5-12). Accordingly, the
principle difference between the tablet of Stahl and the claimed
edible tablet is that there is additional freeze-dried flavoring
agent within the tablet. We agree with the examiner that both
Cherukuri and Song teach the incorporation of flavoring agents
within a tablet. Appellants do not dispute this finding but argue
that Cherukuri and Song are not directed to freeze-dried flavoring
agents (Brief, pages 5-7; Reply Brief, pages 1-2). However, on
this record Stahl has taught that both conventional flavoring
agents and freeze-dried flavoring agents may be used in the
flavoring process, although freeze-dried flavoring agents are
preferred (page 7, l. 6). Appellants have not provided any
evidence on this record that one of ordinary skill in this art
would have considered freeze-dried flavoring agents different in
use that conventional flavoring agents. See In re Scarborough, 500
F.2d 560, 566, 182 USPQ 298, 302 (CCPA 1974)(Attorney’s arguments
are generally held to be insufficient to take the place of evidence
or expert testimony).
Appellants argue that Cherukuri teaches in the art that one
cannot merely substitute different types of flavorings, citing col.
1, ll. 15-20 (Brief, pages 7 and 10; Reply Brief, pages 1-2). This
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