Appeal 2003-2019
Application 90/004,933
language of claim 24 as discussed on pages 7-12 of the Decision. Instead,
Appellant focuses mainly on our determination of the issues with respect to
claim 31, the claim representing the product claims on appeal.
Appellant first takes issue with our reasoning presented on pages 13-
18 of the Decision. This portion of the Decision focused on what Shine
describes to one of ordinary skill in the art with regard to pretzels “filled
with … filling.” Stepping into the shoes of one of ordinary skill in the art,
we found that one of ordinary skill in the art would have understood Shine
as describing a filled soft pretzel in which the filling was completely
enclosed in the dough, as required by claim 31, based on disclosures within
Shine and the prior art as a whole.
Appellant has not convinced us that we made a reversible error in
this portion of our Decision. According to Appellant, “[t]he heart of the
Shine patent is its use of the words 'filled' and 'fillings.'” (Request 2).
Appellant notes, “the Examiner has acknowledged that the words ‘filled’ and
‘fillings’ do not always mean that there is substantial or complete
enclosure.” (Id.). According to Appellant, “it is more likely that the Shine
“fillings” are exposed and open to the air.” (Id.). Appellant further argues
that the definition of “filled” and “fillings” contradicts a reading of Shine as
requiring “complete enclosing,” i.e. enclosing the filling sufficiently to
prevent intrusion of caustic upon caustic dipping (Id). Appellant offers two
alternative explanations of Shine (Id.), and also argues that the only way to
test water activity of the filling is if the filling were exposed to air.
Therefore, because Shine measures water activity, there is no substantial or
complete enclosure (Request 2-3).
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Last modified: November 3, 2007