Appeal No. 2004-1794
Application No. 09/626,039 Page 7
of an equivalency between the susceptor and flavor enhancing
materials applied to a substrate as taught by Fisher and the
specific HAA containing food coating materials of Singh and Shoop
appears to be based on appellants’ teachings, not those of the
applied references.
On this record, we agree with appellants that the examiner
has not established a prima facie case of obviousness.
Consequently, we reverse the examiner’s § 103(a) rejection based
on Fisher in combination with Singh and Shoop.
Similarly, the examiner’s § 103(a) rejections premised on a
proposed modification of Jay based on the teachings of Shoop
stand on a weak footing. Jay is concerned with a brown coloring
agent containing composition that is applied to an inner surface
of a microwave transparent material that will be in contact with
a food item during microwave heating. Microwave heating results
in a food item that is browned on the surface that is contacted
by such a coated microwave transparent material during heating.
Jay specifically refers to annatto or malt extract as examples of
the type of brown coloring agent employed. While Jay (page 3,
lines 5-7) does note that “any commercially known coloring agent
which produces a suitable brown color on food products
particularly on heating” may be used, Jay also provides that a
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