Appeal 2003-2019
Application 90/004,933
adjustments are made to the caustic dipping step. Example II simply
indicates that the soft pretzel is prepared in a manner similar to that of
Example I, except that no shortening was added and it was filled with
thermostable cheese filling. Contrary to Appellant’s explanation of Shine,
Shine describes caustic dipping a filled soft pretzel for 15 seconds. It is self-
evident that 15 seconds would be long enough for the caustic solution to
encroach upon filling and make the pretzel inedible if the filling were not
completely enclosed in the dough.
Nor can we agree with Appellant that the measurement of water
activity in Shine is proof that the filling of Shine is not substantially or
completely enclosed by the dough (Request 2-3). Measuring the water
activity is a simple matter of cutting open the filled pretzel after baking.
Appellant has not convinced us that our interpretation of Shine is
unreasonable in light of the evidence as a whole.
Appellant next takes issue with our reasoning presented on pages 18-
22 of the Decision. Appellant continues to argue that the “Stuffin’ Pretzels”
product disclosed in Perrin and Product Alert is not a soft pretzel.4 These
arguments were sufficiently addressed in the Decision (Decision 21-22). As
we indicated in the Decision, Shine alone is evidence that the subject matter
of claim 31 was in the possession of those of ordinary skill in the art at the
time of the invention. While Perrin and Product Alert provide further
evidence of obviousness, these references are not critical to the rejection.
Appellant argues that our statement on the top of page 21 of the
Decision that Perrin and Product Alert are not essential to the rejection
4 Appellant states that McGrath is also directed to the “Stuffin Pretzels”
product, it is not. McGrath, therefore, is not included in our discussion of
this issue.
5
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Last modified: November 3, 2007