Appeal No. 2006-0276
Application 10/144,463
Other issues
We determined above that appealed claim 21 reads on a breadstick per se having any
manner of “randomly-disposed bread projections” on the surface thereof that provide the
capabilities, to any extent, of winding any kind of elongated pasta and eating the pasta-wound
breadstick. We further found above that although the surface characteristics of the breadstick
used by Ashley as reported by Hays and Wellman were such that pasta was wound on the
breadstick and the wound paste was retained on the breadstick when it was held in the air and
eaten, the surface characteristics of the breadstick were not otherwise reported by the references.
We take notice that breadsticks purchased in stores and bakeries and served in restaurants are
generally rod-shaped with surfaces ranging from smooth to having random, bump-like bread
protrusions, that is, bread projections, thereon. See In re Ahlert, 424 F.2d 1088, 1091-92, 165
USPQ 418, 420-21 (CCPA 1970) (notice may be taken “of facts beyond the record which, while
not generally notorious, are capable of such instant and unquestionable demonstration as to defy
dispute”). However, there is no other reference before us on appeal which describes a
breadstick, with or without the capabilities provided by bread “projections.”
We find that in the final rejection mailed January 15, 2004, the examiner applied, among
others, “Coulson” under 35 U.S.C. § 102(b) to reject claim 21 as it then stood of record (page 2):
21. A device for use in winding elongated pasta, said device comprising:
a rod-shaped product made entirely of bread having an axis, a side and a length; and
integrally baked, randomly-disposed bread projections extending from said side in all
directions radial to said axis.
The examiner stated in said ground of rejection that
Coulson teach a rod shaped bread that is made from . . . wheat flour . . . having
integrally baked randomly disposed projections (i.e. note that the thickness of the
projections vary, which provides for a more randomly disposed projections) extending
from the sides of the bread, along the entire side of the bread as recited in claim -, [sic]
and in all directions radial to the bread length as recited in claim 21 (Page 453,
Challah recipe). [Page 2.]
Thereafter, appellant amended claim 21 to read as it stands of record on appeal, i.e., to
include limitations which we determine to only specify the capabilities that any manner of bread
projections must provide to a breadstick, and the examiner found that the amendments
“overcome the rejections of record” in the interview summary record of March 10, 2004.
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