Appeal 2003-2019
Application 90/004,933
“impermissibly reforms the final rejection and has not been termed a new
ground of rejection.” (Request 4). On the contrary, we did denominate the
rejection as a new ground of rejection (Decision, p. 6, ¶ 1 and p. 31, ¶ 3).
The rejection was not “impermissibly reformed.” Appellant was given an
opportunity to respond to the new reasoning. See 37 C.F.R.
§ 1.196(b)(2003), the rule in effect at the time.
Appellant further argues that we erred on page 21 in holding that
Perrin and Product Alert are analogous prior art (Request 5). According to
Appellant, “[t]his does violence to the understanding of one skilled in the art
that soft pretzel dough requires a caustic dip and yeast.” (Id.).
This argument is not persuasive. To label the references as analogous
prior art merely connotes that they are relevant to a consideration of
obviousness under section 103 as “prior art.” In re Sovish, 769 F.2d 738,
742, 226 USPQ 771, 773 (Fed. Cir. 1985). The “Stuffin Pretzels” product is
not too remote to be considered prior art as this product is a filled baked
good just as the filled soft pretzel of Shine is a filled baked good and those
of ordinary skill in the art would recognize that problems with the filling and
baking aspects are as relevant to one as they are relevant to the other.
Appellant argues that the Declarations confirm that a soft pretzel
dough requires a caustic dip and not the egg wash of the Stuffin Pretzel and
one would expect that soft pretzel dough would contain yeast (Request 4).
We weighed the evidence and opinions produced in the Declarations, along
with the evidence as a whole, and discussed the probative nature of that
evidence at length (Decision 22-25). Appellant has not convinced us of a
reversible error in our weighing of the evidence. Further, whether or not the
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Last modified: November 3, 2007