Appeal No. 2005-1598
Application 10/103,162
drastic freeze/thaw cycles” (col. 5, lines 29-51). The testing temperature of 0° F is, of course,
well below 32°F and indeed, room temperature of 77°F.
The icing composition of the Scherwitz Example includes the three critical ingredients of
fat, including the ratio of kinds of fats, sugar and water in amounts falling within the prescribed
ranges and fat ratios (specification Table, cols. 4-5). Also present are corn syrup solids, salt and
liquid dextrose (id.), which the examiner finds to be “humectants which are water activity
reducing” agents (answer, pages 5-6), and appellants disclose as much (specification, page 19).
We find that the icing composition of the Scherwitz Example further includes “Invertose,” which
is better known by its chemical synonym “invert sugar,” is a mixture of glucose and fructose,
and is a well known humectant for foodstuffs, particularly confections.6 See In re Ahlert, 424
F.2d 1088, 1091-92, 165 USPQ 418, 420-21 (CCPA 1970) (notice may be taken “of facts
beyond the record which, while not generally notorious, are capable of such instant and
unquestionable demonstration as to defy dispute”).
The examiner submits that one of ordinary skill in this art would have obviously found in
Scherwitz the teaching that topping compositions containing the specified ingredients in the
amounts indicated and other ingredients, are “sufficiently fluid at 32 degrees F to allow dipping
the food into the topping because the topping is pliable and spreadable at freezing temperature,”
pointing out that “spreading and dipping are known alternative techniques for applying a topping
composition to a food product,” such that the selection of the method of application would have
been a matter of choice (answer, pages 4-5). The examiner further finds that the corn syrup
solids, dextrose and salt in the Scherwitz Example composition are known “humectants which
are water activity reducing agents” and that “[g]lycerine is a well known humectant,” thus
concluding that the use of different humectants to perform that art-recognized function would
have been obvious (id., pages 5-6). The examiner also finds that if the package containing the
icing permits the icing to be accessed by a utensil for spreading, the package obviously “allows
for the dipping of the food product in the package” (id., page 6).
6 See generally, The Condensed Chemical Dictionary 563 (10th ed., Gessner G. Hawley, ed.,
New York, Van Nostrand Reinhold Company, 1981); McGraw-Hill Dictionary of Scientific and
Technical Terms 1047 (5th ed., Sybil P. Parker, ed., New York, McGraw-Hill, Inc. 1994).
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