Appeal No. 2005-1582
Application No. 09/682,176
the mixture to the surface of the tableting process equipment would
necessarily result upon processing the tableting mixture by punching,
pressing or other like processes as detailed below.
It should be appreciated that the present invention is not limited by
the size characteristics of the gum chips and the tableting media to the
extent that the gum chips are larger in size than the particles of the
tableting media, such as powder-sized particles of a tableting powder. In
an embodiment, the average particle size of the gum chips ranges from
about 0.5 millimeters (mm) to about 6.0 mm. The gum chip particles can
be formed by any suitable process, preferably a chipping process, as
detailed below. It should be appreciated that the particle size, unless
indicated otherwise, is based on the maximum dimension of the particle.
[Specification, paragraphs 0032 and 0033].
As stated above, Cherukuri exemplifies gum granules having a size of about 4
mesh that are mixed with powdered sized tableting media. As such, the size of the gum
chips is larger than the particles of the tableting media. Based upon the description
appearing in the specification, Cherukuri contains a non-homogenous blend of tableting
media and gum chips because the gum chips have a larger average particle size than
the average particle size of the tableting media.
Appellants argue that “[i]n Cherukuri the bulk of the powdered sweeteners are
included in the gum formulations prior to grinding. Thus, the sweeteners are in particles
of exactly the same size as the Cherukuri gum particles. (See Example V)”. (Brief, p. 5).
This argument is not persuasive. Cherukuri exemplifies the gum granules having
a size of about 4 mesh that are mixed with powdered sized tableting media. (See
Examples 1-3). The sweeteners added during the formulation of the gum particles are
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