Appeal No. 1006-1198
Application No. 10/639,936
Haynes-Jacobson states a filling with high water activity can cause moisture migration to the
cross end result and a soggy food product thus comprising the product quality. We agree with
the examiner that Haynes-Jacobson therefore suggests that the filling have a lower water activity.
As stated by the examiner on page 5 of the answer, “[I]t would have been obvious to make the
filling to have a water activity less than the outer batter to prevent water migration.”
We agree with the examiner’s statement made in the paragraph bridging pages 6 through
7 of the answer. The examiner states that a pancake is not cooked in a closed iron and as such,
Haynes-Jacobson teaches that two aliquots of batter are partially cooked before they are brought
together to make the filled pancake. However, the examiner states when making a waffle, it is
not necessary to first make two separate partially cooked layers because when making a waffle a
closed iron is used. Hence, the very manner in making a waffle suggests opposing a first partial
of the uncooked batter onto the bottom plate of a waffle iron as required in appellants’ step c of
claim 54, followed by allowing the first portion of that uncooked batter to partially cook and then
depositing the thin material on the partially cooked first portion of the waffle pattern. Thereafter,
depositing a second portion of the uncooked batter material over the film material enclosing the
waffle iron would be readily apparent as stated by the examiner on page 7 of the answer. The
examiner states that two layers are to be partially cooked before putting them together would
require an extra waffle iron and extra time that is not needed in making the waffle because the
waffle is not cooked on an open surface like a pancake. The examiner states that is was logical
reasoning to deposit a first portion of uncooked batter in a waffle then allowing that first portion
of the uncooked batter to partially cook and then depositing the film material onto the partially
cooked first portion of the batter all by depositing a second portion of the uncooked batter
between over the fill material and closing the waffle iron. What the examiner is stating page 7 of
the answer is that the very nature of using a waffle iron suggests doing the steps as set forth in
the grounds of claim 54. We agree.
Also, as stated on page 8 of the answer, the examiner states that he recognizes Haynes-
Jacobson does not disclose some of the steps claimed but that the steps would have been obvious
to one of ordinary skill in the art and viewing the teachings of Haynes-Jacobson and the general
knowledge in the art about cooking pancakes and waffles. The examiner states that the cooking
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