Appeal 2003-2019
Application 90/004,933
Appellant’s arguments are not persuasive because, the fact that
“filled” or “filling” was sometimes used in the food art to refer to non-
enclosed fillings does not shed much light on how “filled … with filling”
was used in Shine or how that terminology would have been understood by
one of ordinary skill in the art reading Shine. This is because the
terminology was also used in the food art to refer to completely enclosed
fillings. The question is: Which usage would one of ordinary skill in the art
understand Shine as using? The evidence as a whole supports our finding
that those of ordinary skill in the art would understand Shine as referring to
completely enclosed fillings within the soft pretzel dough because Shine
describes dipping in a caustic solution (Example II prepared substantially as
in Example I), and because those of ordinary skill in the art understood that
exposure of the filling to the caustic solution would cause the product to
become inedible. Appellant’s own Background of the Invention indicates as
much (Patent Specification, col. 1, ll. 51-66 describing the prior art).
Appellant argues that the only reasonable explanation of Shine is that
either: (1) there is no caustic dip where the filling is exposed, or (2) the
caustic dip is performed by carefully making a partial exposure of the dough
to the caustic without permitting the caustic to contact the filling. Appellant
cites to no part of the disclosure of Shine that supports these alternative
explanations. Example II of Shine, in fact, is contrary to such an
interpretation. Example II describes the preparation of a cheese-filled soft
pretzel. Example II incorporates the caustic dipping step of Example I
(Shine, col. 6, ll. 56-59). The caustic dipping step is described as dipping in
a 0.2 M aqueous NaOH for 0.25 min, i.e., 15 seconds (Shine, Example I, col.
6, ll. 40-42). To form the filled pretzel of Example II, no special
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