Appeal No. 2006-1211
Application 10/277,697
§ 103(a) as being unpatentable over Forester and Maddox as applied above, and further in view
of Luhadiya et al. (answer, page 9); claim 25 under 35 U.S.C. § 103(a) as being unpatentable
over Forester and Maddox as applied above, and further in view of Carroll et al. (answer, pages
9-10); claim 26 and 33 under 35 U.S.C. § 103(a) as being unpatentable over Forester and
Maddox as applied above, and further in view of Knebl (answer, pages 10-11); and claim 18
under 35 U.S.C. § 103(a) as being unpatentable over Forester and Maddox as applied
above, and further in view of Nesser (answer, pages 11).1
We refer to the answer and to the brief and reply brief for a complete exposition of the
positions advanced by the examiner and appellant.
The principal issues in this appeal involve the following representative language from
independent claim 1 which specifies a property of a casing of a confectionery product and
properties of a filling of confectionery material encompassed therein:
wherein the casing is capable of forming release means upon the action of the saliva in
the mouth which acts to liberate the filling out of the casing and wherein the
confectionery material has dissolution properties effective to act together with the
release means so as to enable the casing to be left substantially as an empty shell
before it has entirely dissolved in the mouth.
The language of independent claims 27, 28 and 30 is similar.
The examiner and appellant2 do not provide an interpretation for the language “forming
release means upon the action of the saliva in the mouth which acts to liberate the filling out of
the casing” that specifies a function without defining structure which satisfies that function and
thus, the strictures of 35 U. S. C. § 112, sixth paragraph, apply. See Texas Digital Sys., Inc. v.
Telegenx, Inc., 308 F.3d 1193, 1208, 64 USPQ2d 1812, 1822-23 (Fed. Cir 2002), and cases cited
1 Claims 1 through 33 are all of the claims in the application.
2 37 CFR § 41.37(c)(1)(v) (2005) Summary of claimed subject matter provides in pertinent part:
For each independent claim involved in the appeal and for each dependent claim
argued separately under the provisions of paragraph (c)(1)(vii) of this section, every
means plus function and step plus function as permitted by 35 U.S.C. 112, sixth
paragraph, must be identified and the structure, material, or acts described in the
specification as corresponding to each claimed function must be set forth with
reference to the specification by page and line number, and to the drawing, if any by
reference characters.
See also Manual of Patent Examining Procedure § 1205.02 (8th ed., Rev. 3, August 2005;
1200-14).
- 2 -
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007