Appeal No. 2005-1598
Application 10/103,162
We find that appellants further disclose that “[d]ipping can include simply bringing a
food product into contact with a fluid topping” (specification, page 3, ll. 16-17). Thus, in the
context of the language of the appealed claims, we interpret the term “dipping” to mean
contacting the topping composition with the warmed food product at least to the extent, however
slight, that the warmed food product is in sufficient contact with the topping composition such
that some amount, however small, of the topping composition adheres to the warmed food
product.
Turning now to Scherwitz, we find that the reference would have disclosed to one of
ordinary skill in the culinary arts a frozen food product comprising a frozen dough product, such
as a breakfast pastry product, and a packaged “icing” topping composition, wherein the “icing
composition . . . has a substantially temperature independent viscosity (isoviscous) such that it
will remain pliable and spreadable at conditions ranging from freezer conditions to room
temperature,” and the “consumer or user” may thaw the food product and/or warm it in warming
means (col. 1, ll. 6-18). The icing composition is placed on the warmed food product, and thus
the composition is subjected to a wide variety of temperature conditions, from freezing to room
temperature, and has the objective of being “soft and spreadable both at freezer conditions and
which will also remain soft and spreadable but not too runny at room temperature and above”
(col. 1, ll. 19-26, and col. 1, l. 61, to col. 2, l. 2). These conditions are taught to obtain where the
icing composition has the “critical” ingredients in the “critical parameters” of 12-20 weight
percent fat, 30-60 weight percent sugar, that is, flavoring, and 9-22 weight percent water,
wherein the ratio of liquid oil to liquid oil plus shortening is 0.26 to 0.43:1, and further can
contain additional ingredients, including corn syrup solids; the compositions having, among
other properties, substantially temperature independent viscosity and “good cling to the
underlying bakery product” (col. 2, l. 28, to col. 4, l. 51). In the Scherwitz Example, “[s]amples
were stored at 0° F,” and “[t]hereafter, the samples were placed upon a warm raised donut for
evaluation” by a “panel of skilled individual testers,” wherein “[i]t was compared with a control
icing which was fresh” with respect to, inter alia, “Ease of Application,” with the result that
“[o]n all significant characteristics, the product of the present invention, compared very
favorably with a conventional control icing, even though the product . . . had been subjected to
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