Appeal No. 2005-1581 3
Application No. 09/681,692
support of their respective positions. This review has led us to conclude that the
Examiner’s rejection is well founded. Our reasons follow.
OPINION
The Examiner asserts that McGrew “discloses a wax-free, low calorie chewing
gum pellet (column 16, line 52) including at least 70% wax-free gum base and no bulk
sweetener (column 15, lines 10-12). Also present are 2-7% flavoring agent and an
emulsifier. It would have been obvious to coat the chewing gum in McGrew et al with
a syrup coating including 1% flavoring agent, 0.3% artificial sweetener and 1%
dispersing agent, wherein the coating is at least 50% of the product, since it is well
known to coat chewing gum with such a composition, as evidenced by Yatka et al
(column 6, line 42 to column 7, line 54). The coating in Yatka et al is applied using a
panning procedure.” (Office Action mailed April 09, 2004).
Appellants argue that there is no suggestion, teaching or motivation to combine
McGrew with Yatka and that McGrew teaches away from a combination with Yatka.
(Brief, pp. 7-8, and 10-11). Appellants also argue that the Examiner reached the
present invention only through the use of hindsight reconstruction. (Brief, p. 9).
These arguments are not persuasive. McGrew discloses that it had been
recognized by persons skilled in the art to reduce or eliminate the caloric bulking
agent to produce low caloric chewing gums. (Col. 2, ll. 5-11). Moreover, McGrew
discloses an embodiment where the chewing gum composition excludes or
substantially eliminates the bulking agent. (Col. 15, ll. 10-13). McGrew discloses the
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