Appeal No. 1006-1198
Application No. 10/639,936
OPINION
I. The 35 U.S.C. § rejection of claims 53 through 73
The examiner’s position for this rejection is set forth on pages 3 through 6 of the answer.
Beginning on page 15 of the brief, appellants discuss the limitations of independent claim 14.
Appellants argue that the subject matter of their claims requires an outer casing material having a
water activity level that is greater than that of the fill material. This is provided in steps A and B
of claim 14. Appellants explain the benefits resulting from this claimed aspect of the invention.
Brief, pages 15-16. Beginning on page 16 of the brief, appellants also argue that Haynes-
Jacobson is directed to a method for forming a filled pancake. Appellants argue that the term
“waffle” is only mentioned twice in the entire application. Appellants argue that their invention
is directed toward a method forming a filled waffle which is a process completely unlike that for
forming a filled pancake. Appellants argue that Haynes-Jacobson teaches that there are basically
two methods disclosed for forming a filled pancake. In a first method two aliquots of batter are
deposited onto a cooking surface and partially gelatinized. Another method, a single batter
deposit is placed onto a cooking surface and after partial gelatinization a filling material is
deposited onto the ungelatinized portion. Brief, pages 16-17. Appellants argue the only mention
of water activity in Haynes-Jacobson is in paragraph 0077. Appellants ague there is no
suggestion in Haynes-Jacobson for a method of forming a filled waffle wherein one creates
another casing material having a higher water activity than that of a filling material as required
by independent claim 54. On page 18 of the brief, appellants argue that their claimed invention
is directed to a specific method for making a filled waffle and includes no more steps than that
disclosed nor made obvious by Haynes-Jacobson. Appellants argue that the key among the steps
is providing an outer casing material having a water activity than is higher than that of the filling
material. In addition, appellants argue that their claimed invention requires a first deposit of an
outer casing material into a waffle iron followed by partially cooking of the outer casing
material. The filling material is then deposited over the uncooked portion of the outer casing
material and a second deposit of outer casing material is placed over the filling material. The
waffle iron is then closed and cooking is completed. Appellants argue that these steps are not
disclosed or made obvious by Haynes-Jacobson.
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