Appeal No. 2004-1794
Application No. 09/626,039 Page 8
”hygroscopic system” would not be suitable. Here, the examiner
has not fairly established that the egg wash, including HAA,
disclosed by Shoop as being applied directly to food would meet
the criteria for a coloring agent of the type suggested by Jay
because HAA browns by a reaction with foodstuff proteins and is
hygroscopic. The mere assertion by the examiner (answer, page 6)
that it would have been obvious to one of ordinary skill in the
art to substitute “one known commercial browning agent for
another for the same purpose” does not establish that the egg
wash that is directly applied to foodstuffs by Shoop is an
equivalent to the coloring agents (pigments or stains) suggested
by Jay. On this record, the examiner’s § 103(a) rejection of
claims 1 and 7 and separately stated § 103(a) rejection of claims
9, 18 and 19, each over Jay and Shoop, are not sustained.
Because the examiner’s separate rejection of claim 8
employing Jay and Shoop together with Fisher suffers from the
same basic defect that the examiner has not shown to be remedied
by Fisher, we will not sustain the examiner’s § 103(a) rejection
of claim 8.
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