Appeal No. 2006-0064 Παγε 6
Application No. 09/155,740
Much of appellants’ arguments in the brief and the reply
brief, including the opinion declaration of David S. Reid that is
referred to for support, are not persuasive because they are
based on an incorrect assessment of the entirety of the applied
prior art teachings and contemplate inventive subject matter that
is not required by the here appealed claims. When the claim does
not recite allegedly distinguishable features, “appellant[s]
cannot rely on them to establish patentability.” In re Self, 671
F.2d 1344, 1350-1351, 213 USPQ 1, 7 (CCPA 1982). Consequently,
such arguments are entitled to little weight.
In this regard, claim 1 is drawn to a method that includes,
inter alia, the steps of: providing a dried fruit2 of at least 5
percent moisture3; employing a mechanical or physical process
that produces cracks on the surface or edges of the fruit so as
to disrupt the structure of the fruit while maintaining the
2 As set forth at page 4, first full paragraph of
appellants’ specification, the claim term “fruit” is employed in
a generic manner by appellants to include traditional whole
fruits and pieces thereof. Morever, appellants list certain
vegetables at page 4 of the specification as being included
within the meaning of the term “fruit” without restricting that
term to those listed as examples.
3 The claim term “moisture content between 5 to 40% or more” is given its
broadest reasonable interpretation and the “or more” language opens the moisture
amount to be inclusive of moisture contents up to the maximum moisture amounts that
a fruit can include.
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