Appeal No. 2005-1598
Application 10/103,162
containing the topping is of a size and shape permitting the food product to be dipped therein to
any extent, however small.
The term “comprising” as used in the claims as a transitional term as well as to modify
the contents of the packaged food product and the ingredients in the topping compositions, with
its ordinary open-ended meaning, and thus, the claims encompass products and methods which
include other elements and ingredients, limited only by the limitations with respect to the
topping composition being “sufficiently fluid” for dipping the product and adhering to the food
product as specified. See generally, Exxon Chem. Pats., Inc. v. Lubrizol Corp., 64 F.3d 1553,
1555, 35 USPQ2d 1801, 1802 (Fed. Cir. 1995) (“The claimed composition is defined as
comprising - meaning containing at least - five specific ingredients.”); In re Baxter, 656 F.2d
679, 686-87, 210 USPQ 795, 802-03 (CCPA 1981) (“As long as one of the monomers in the
reaction is propylene, any other monomer may be present, because the term ‘comprises’ permits
the inclusion of other steps, elements, or materials.”).
We determine that food can be frozen by the consumer at 32°F (see, e.g., specification,
page 1, ll. 22-24; cf. page 6, l. 3, page 17, ll. 6-7, and page 19, ll. 24-25). Appellants disclose
“room temperature (e.g., 25C)” (specification, e.g., pages 5 and 16), that is, for example, 77°F,
and that “[t]he time taken to warm a food product to an eating temperature will vary depending
on factors such as the composition and size of the food product and the method of warming”
(page 16, ll. 27-29).
Based on this record, we determine that the temperature at which the topping
composition must be “sufficiently fluid” after exposure to room temperature after removal from
frozen storage for less than 5 minutes in claim 53 and for 5 minutes in claim 64 is no less than
and generally, somewhat above 32°F. The temperature at which the topping composition is
“sufficiently fluid” under the limitations of claim 67 is another matter. This is because the claim
simply requires that the topping composition is exposed to room temperature for the time taken
to warm the frozen food product without limitation as to warming time and means, and thus,
includes the consumer merely placing the frozen food product and packaged topping
composition on the countertop to warm to room temperature which can be 77°F. Thus, we
interpret claim 67 to encompass methods wherein the specified topping composition has a
temperature of 77°F.
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