Appeal No. 2005-1598
Application 10/103,162
Appellants submit that the Scherwitz “toppings are not necessarily formulated from the
‘same ingredients’ as Applicants’ toppings and do not necessarily have the same fluidity
properties” (brief, page 13). Appellants argue that the claimed topping ingredients contain
overlapping amount of the ingredients that Scherwitz teaches are “critical” to be pliable and
spreadable at freezer conditions, and further contain “ingredients that cause the claimed toppings
to be more fluid than the [Scherwitz] toppings,” contending that “[f]ormulations that include
ingredients to achieve these fluidity properties are described in Applicants’ specification, but are
not described or suggested by” Scherwitz (id., pages 13-15). In this respect, appellants contend
that the “specification starting at page 18, line 28, describes a topping that includes high fructose
corn syrup and a water activity reducing agent such as glycerine to achieve the described fluidity
properties” (id., page 15).
Appellants further submit that evidence in the specification and the Kittleson declaration
show that the Scherwitz toppings “do not necessarily have the same fluidity as Applicants’
toppings, and are not necessarily dippable,” contending that the reference does not disclose that
the toppings are sufficiently fluid to be dippable at the temperatures specified by the claims, and
thus, one of ordinary skill in this art following the reference “would not have necessarily arrived
at a topping formulation that can be applied by dipping . . . at the claimed low temperature
conditions” (id.; emphasis original; see also pages 18-21). Appellants allege that the evidence of
record establishes that the toppings of Scherwitz “have significantly different low temperature
fluidity properties compared to” the claimed toppings, and “are not necessarily dippable at
reduced temperature, e.g., at 32°F” (id., pages 15-16). Appellants point to the vanilla, chocolate
and comparative topping compositions at specification pages 24-26, contending that the same
contain “amounts of powdered sugar, water, and oil/shortening that fall with the [Scherwitz]
‘critical parameters” but “have drastically different low temperature fluidity properties” as
shown at page 26, noting that the claimed topping compositions contain “glycerine in
combination with high fructose corn syrup” (id., page 16).
Appellants contend that the “same point is evinced” by the Kittleson declaration in which
it is reported that a claimed topping composition “exhibited a viscosity at 32F of approximately
162,000 centipoise” and “was capable of having a warmed food product dipped into the topping
without mechanical scooping or spreading, so the food product displaces the fluid topping and
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