Appeal No. 2006-1027
Application No. 09/865,074
Claims 21-23, 25, 27 and 33 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Willard (Answer, page 3). Claims 24, 26, and 28-32 stand rejected
under 35 U.S.C. § 103(a) as unpatentable over Willard in view of Holm (Answer, page
5).
Based on the totality of the record, we affirm both rejections on appeal essentially
for the reasons stated in the Answer, as well as those reasons set forth below.
OPINION
The examiner finds that Willard discloses a snack product made from corn and
other cereal flours, where the snack product is made from a dough composition
comprising 15-80% low water absorption component (partially gelatinized cereal flours),
3-40% high water absorption component (pregelatinized starch), and a moisture content
of 40-50% (Answer, pages 3-4). With regard to claim 21 on appeal, the examiner finds
that Willard does not disclose the percent of gelatinization, the viscosity, or the water
absorption index of the pregelatinized starch (Answer, page 4). However, the examiner
notes that the claim is drawn to a product-by-process, and it is the patentability of the
product which must be considered, not the properties of the starting material (dough
composition)(id.). The examiner reasons that the dough composition is fried to form the
snack product, and thus in the chip the pregelatinized starch will no longer have the
characteristics claimed (Answer, page 5). The examiner further notes that appellants
have not shown that the use of pregelatinized starch having the claimed properties
results in a snack product different from the Willard product (Answer, sentence bridging
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