Appeal No. 2005-1598
Application 10/103,162
causes the fluid topping to flow around and coat the food product, i.e., the topping can be applied
to the food product by ‘dipping’ the food product into the topping at 32F” (id.). Appellants point
out that the tested Scherwitz “comparative” composition had “a viscosity at 32F of
approximately 698,000 centipoise” and “was not capable of having a warmed food product
dipped into the topping so the food product displaces the topping and coats the food product, i.e.,
the topping is not dippable at 32F” (id., pages 16-17).
The examiner responds that “the claims do not recite any specific fluidity measurement,”
and points out that the Scherwitz toppings “remain soft and spreadable even at freezing
conditions” which are “a lower temperature than 32 degrees F” (answer, page 7). The examiner
finds that the Scherwitz compositions contain water activity reducing agents as shown in the
Example thereof which “contains 1.916 % corn syrup which is closed [sic, close] to about 2% as
claimed[,] . . . .449% salt and 3.167 [%] dextrose[,] . . . the amounts fall within the range
claimed” (id., pages 7-8). The examiner submits that “[t]he measurement of fluidity is recited in
relation to being capable of dipping and the [Scherwitz] topping is capable of being dipped at the
temperature claimed because it is soft and pliable,” pointing out that “page 17 of the
specification discloses, while dipping is preferred, the topping may also be applied by spreading”
(id., page 8).
The examiner finds with respect to the evidence at specification pages 24-26, that the
same “only shows the difference in viscosity; there is no showing of a correlation between
viscosity and the ability of being dipped into,” and since “[t]he claims do not contain any
limitation on viscosity . . . [it] is not a point to be considered” (id., pages 8-9). The examiner
finds with respect to the evidence in the Kittleson declaration that “the declaration does not make
any correlation between viscosity and the ability to be dipped into,” contending that the showing
that the Scherwitz topping has a viscosity of 698,000 cps falls within the range of 500,000-
10,000,000 cps disclosed at specification page 18 which allows “for application by dipping,”
thus establishing that the Scherwitz “topping is capable of being dipped into” (id., page 9). The
examiner finds that the report in the declaration that “the dough product would become deformed
upon attempting to dip into the Scherwitz composition” is incomplete because the declaration
does not state “what deforming means and there is no showing of how the product is deformed,”
and that “[t]here is no positive statement or showing that the dough product can not be dipped
- 11 -
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: November 3, 2007