Appeal 2006-0891
Application 10/224,886
Claim 25
The next argued claim is claim 25. Claim 25 is a product-by-process
claim. It is directed to the dough composition made by the process of claim
16 further including a percentage of damaged encapsulated chemical
leavening agent particles below 5% (claim 24) and having a particular
property of carbon dioxide evolution after 10 weeks at 45 °F.
Appellant argues that Kuechle does not teach, motivate, or suggest a
dough composition having the refrigerator stability featured in claim 25.
Appellant argues that Kuechle does not discuss the carbon dioxide evolution
from their dough and further states that Kuechle discloses that their dough
composition can be stable at refrigeration temperatures for a maximum of
seven days, preferably between about one day and about four days citing
Kuechle at, e.g., column 3, lines 5-33, especially lines 27-29.
As a first matter, the fact that Kuechle does not expressly state a value
for carbon dioxide evolution does not mean that the evolution in Kuechle’s
dough is not in the claimed range. Second, the reason Kuechle encapsulates
the chemical leavening agent is to delay the leavening reaction, i.e., delay
the evolution of carbon dioxide, and thereby increase shelf life (Kuechle,
col. 8, ll. 28-33). While Kuechle discloses a shelf life of up to seven days,
how this compares to Appellant’s limitation of carbon dioxide evolution is
unknown, and neither we, nor the Examiner, are in a position to perform the
tests necessary to make a comparison. Given the similarities in the mixing
process, it is reasonable to shift the burden to Appellant to show that mixing
according to the process of Kuechle does not, in fact, result in the carbon
dioxide evolution of claim 25. Appellant has provided no convincing
objective evidence in support of a patentable difference.
11
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007