Appeal No. 2006-2809 Page 6
Application No. 10/867,713
We agree with Appellants that the examiner has not set forth a prima facie case
of obviousness. Cameron describes powdered compositions containing fat, protein,
and carbohydrate. Col. 1, lines 20-35. Cameron states that the compositions can be
used in various food products such as cakes, toppings, or spreads. Col. 3, lines 34-38.
In particular, Cameron describes their use in forming whipped toppings. Col. 3, lines
20-26.
Bisperink discloses a powdered ingredient comprising a matrix containing
carbohydrate and protein and entrapped gas. Page 2, lines 31-33. Bisperink describes
adding this gas-entrapped matrix, i.e., the gas-generating ingredient, to a powder to
form foam on the surface of a beverage or other liquid. Page 2, lines 21-22 and 31-36;
page 4, lines 30-56. We agree with Appellants that the examiner has not shown that
one of ordinary skill in the art would have been motivated, at the time of the invention, to
include the gas-generating ingredient of Bisperink in the powdered composition of
Cameron. In particular, neither Cameron nor Bisperink discloses or suggests that
adding Bisperink’s gas-generating ingredient to a topping would be useful in forming a
whipped topping.
The examiner argues that incorporation of the gas-generating ingredient would
negate the need to whip the topping with a mechanical whipper. Examiner’s Answer,
page 8. However, the examiner has pointed to no teaching in either Cameron or
Bisperink to show that this would be the case. We do not agree that the teaching in
Bisperink of using a gas-generating ingredient to form foam on the surface of a liquid,
specifically coffee, suggests that this ingredient can be used to produce the effect of a
whipped topping without having to whip the topping. Instead, it is the present
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