Appeal No. 2005-1598
Application 10/103,162
percent total humectants (HFCS, CSS, dextrose, salt glycerin), the differences in total
humectants being greater than the presence and absence of glycerin. We find that the second
inventive composition in the specification has some minor differences in ingredients compared
with the first inventive composition because the second inventive composition further contains
3.37 weight percent cocoa, and otherwise contains significant differences in the same respects
with the comparative composition representing Scherwitz.
We find no disclosure in the specification and in Scherwitz which accounts for these
significant differences in amounts of ingredients. As the examiner points out and we found
above, both the inventive compositions and the composition representing Scherwitz contain the
same “critical” ingredients of fat, including the ratio of kinds thereof, sugar and water in the
same “critical” weight percent ranges taught by Scherwitz to be critical to obtaining a
substantially temperature independent viscosity topping composition that will remain pliable and
spreadable and cling to the warmed food product at 0°F to room temperature, even with
additional ingredients which can be included as shown by the Scherwitz Example composition.
We further find no explanation or evidence with respect to the practical significance of the
differences in amounts of ingredients in the testimony of declarant Kittleson.
With respect to appealed claims 37 and 53, as the examiner points out, these claims do
not specify any ingredients for the claimed topping compositions and thus, the composition
representing Scherwitz per se meets the limitations of these claims if it is “sufficiently fluid” as
claimed, notwithstanding the significant differences in the amounts of ingredients, including the
presence and absence of glycerin, and the differences in performance of the first inventive
composition vis-à-vis the performance of the composition representing Scherwitz as reported at
specification page 26 and by declarant Kittleson.
We refer to our previous findings and discussion of the results reported at 0°F in the
specification (see above p. 16). We agree with the examiner that the declaration provides no
correlation between the viscosity measurements and the reported visual observations with
respect to dipping “the relatively soft dough product” into the topping compositions at 32°F, and
that viscosity is not a claim limitation. We further find in the declaration no correlation between
the visual observations and the claim limitations with respect to “sufficiently fluid” for “dipping”
the warmed “product” into the topping composition to any extent and the composition “adheres”
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