Appeal No. 2004-0736
Application No. 09/871,334
argument is not persuasive. As noted above, Stahl suggests the
substitution of conventional and freeze-dried flavoring agents.
Furthermore, Cherukuri only teaches that different classes of
flavor delivery systems have different characteristics (col. 1, ll.
15-20). Appellants have not established that the systems of
Cherukuri and Song belong to different classes (i.e., liquid,
emulsion, paste or solid).
Appellants argue that Engle provides “absolutely nothing to
the art of flavoring agents” (Brief, page 8, footnote omitted).
However, appellants have not disputed the advantages taught by
Engle for the use of freshly harvested plant material in flavorings
(Answer, page 9). Therefore appellants’ argument is not
persuasive. Additionally, we note that Stahl teaches a desire for
a more intense flavor and stability of the agent, which may be
attributed to the more or less intact cells of the fruit or herb
(page 6, ll. 25-30), indicating a preference for freshly harvested
fruit and herbs.
For the foregoing reasons, we determine that the examiner has
established a prima facie case of obviousness in view of the
reference evidence. Based on the totality of the record, including
due consideration of appellants’ arguments, we determine that the
preponderance of evidence weighs most heavily in favor of
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