Appeal No. 2006-0276
Application 10/144,463
standard, rod-like breadstick was employed” (brief, page 5), and the examiner does not disagree,
finding that the references teach “a breadstick, which is a rod shaped baked bread product”
(answer, page 3). On this basis, the examiner finds the random protrusion containing, rod-
shaped breadstick for winding and simultaneously eating elongated pasta encompassed by claim
21 differs from the otherwise undefined rod-shaped breadstick used for winding and
simultaneously eating elongated pasta disclosed in the references with respect to said random
protrusions on the surface of the claimed breadstick.
The examiner turns to Vecchiola “as evidence that the hair winding and spaghetti
winding using rod-shaped utensils are analogous art [(col. 1, ll. 25-43)] and . . . as evidence of
the conventionality of using tines (i.e., bristles of a brush) for winding an elongated item around
a rod-shaped utensil (brush),” and finds that “[t]he tines provide the necessary positioning and
friction to guide the elongated items so that they do not slip from the utensil [(col. 3, ll. 60-65)]”
(answer, page 4). The examiner finds that Magee “teaches a rod-shaped utensil for winding an
elongated item (i.e., hair) onto the utensil (a curler)” wherein “randomly placed projections
extending radially from the outside of the rod-shaped utensil will provide the best means of
grasping an elongated item for curling around the utensil,” citing col. 1, ll. 15-36 and 60-71,
col. 2, ll. 41-44, and numeral 13 in the FIGs. (answer, page 4; original emphasis deleted). The
examiner thus concludes that “it would have been obvious to modify [the breadstick of] Hayes
. . . [to] include radially extending projections, randomly placed along the breadstick” because
Magee teaches “randomly placed projections extending radially from the outside of a rod-shaped
utensil . . . [to grasp] an elongated item, such as hair, for curling/winding around the utensil,”
and Vecchiola teaches that “winding spaghetti and curling/winding hair are analogous concepts”
(answer, pages 4-5).
Appellant submits that Vecchiola and Magee “relate to completely different arts,” hair
brushes and hair curlers, and “are not analogous with” Hays and Wellman, citing In re Clay,
966 F.2d 656, 659-60, 23 USPQ2d 1058, 1060-61 (Fed. Cir. 1992), arguing that one of ordinary
skill in the art would not have made the combination and “in fact, cannot make such a
combination, as the law requires the references to be analogous” (brief, pages 5-6). Appellant
contends that “the use of references in the field of hair grooming is in no way pertinent to the
particular problem of providing an edible utensil for simultaneously eating pasta and the utensil,”
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