Appeal No. 2006-0276
Application 10/144,463
Vecchiola would have taught one of ordinary skill in the culinary arts that winding elongated
stains of pasta is analogous to winding elongated strands of hair. Clay, 966 F.2d at 659-60, 23
USPQ2d at 1060-61. Indeed, one of ordinary skill would have recognized that Ashley wound
elongated strands of pasta on a breadstick, wherein the wound pasta was retained on the
breadstick to the extent that the pasta-wound breadstick was held up in the air and eaten, and the
claim term “utensil” does not, on this record, impart any characteristics to the surface of the
claimed breadstick distinguishing the same over the disclosures of Vecchiola and Magee. Cf. In
re Stencel, 828 F.2d 751, 754-55, 4 USPQ2d 1071, 1073 (Fed. Cir. 1987) (“Whether a
[statement] . . . of intended purpose constitutes a limitation to the claims is, as has long been
established, a matter to be determined on the facts of each case in view of the claimed invention
as a whole.”). The common, dictionary term “utensil” does not denote any limitation on the use
of an implement, and is synonymous with the term “tool.”1
Appealed dependent claims 23 and 25 limit appealed claim 21 with respect to
“projections” as “staggered, unaligned hooks,” and “bread” as “made of wheat flour,”
respectively, and the examiner has respectively applied Jeremy and Laughlin. Appellants
present the same arguments with respect to the combination of each of these references with
Hays, Wellman, Vecchiola and Magee that we have considered above (brief, pages 8-9; reply
brief, pages 5-6).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in the combined teachings of Hays, Wellman,
Vecchiola and Magee and as further combined with each of Jeremy and Laughlin, with
appellant’s countervailing evidence of and argument for nonobviousness and conclude that the
claimed invention encompassed by appealed claims 21 through 25 would have been obvious as a
matter of law under 35 U.S.C. § 103(a).
The examiner’s decision is affirmed.
1 See generally, The American Heritage Dictionary Of The English Language 1820, 1895 (4th
ed., Boston, Houghton Mifflin Company. 2000).
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