Appeal No. 2005-1581 5
Application No. 09/681,692
have reasonably expected that the pellet chewing gum of McGrew could have been
coated with a coating such as the one disclosed by Yatka. "For obviousness under '
103, all that is required is a reasonable expectation of success." In re O'Farrell, 853
F.2d 894, 904, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988).
"Once a prima facie case of obviousness has been established, the burden
shifts to the applicant to come forward with evidence of nonobviousness to overcome
the prima facie case." In re Huang, 100 F.3d 135, 139, 40 USPQ2d 1685, 1689 (Fed.
Cir. 1996).
Appellants allege that the present invention provides unexpected results.
Specifically, Appellants state:
Experimental studies demonstrate the unexpected results from using a
high level of base and little or no bulk sweetener in a coated chewing gum
formulation, especially in miniaturized coated gum products. For example,
on pages 8-10 of the instant patent application, experimental gum and
coating compositions are discussed. Example 2 represents one of the gum
center compositions and is combined with one of the coating compositions to
form a miniature coated gumball. The resulting gum product is an example
of a gum composition having a gum center that includes a water insoluble
portion comprising at least 50% by weight of the gum center and less than
5% by weight bulk sweeteners. Specifically, the gum center composition of
Example 2 includes a gum base comprising 64.9% by weight of the gum
center and no bulk sweetener. In blind taste testing of four gumballs, 56% of
the participating subjects rated the gum product as more breath freshening
and 45% of the participating subjects rated the gum product as having a
longer lasting flavor as compared to other commercially available coated
chewing gum products. If the participating subjects were allowed to take in
more gumballs while chewing the initial four pieces, the breath freshening
characteristics and the perception of having a longer lasting flavor increased
to 59% and 47%, respectively[.]
(Brief, pp. 12-13).
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