Appeal 2006-3031
Application 10/299,734
stabilizing mixture of xanthan gum and carob gum, including 20 to 27% of
carbohydrates in the dry matter, of which 1 to 7% is glucose syrup, coloring,
and fruit in the form of a fruit extract (Final Office Action dated Aug. 5,
2005, pages 2-3). The Examiner further finds that Tresser teaches a molded
item of frozen confectionary in a wafer protected from moisture at least on
its surface, which is in contact with a water ice center, where the wafer
constitutes an edible mold that contains a water ice center and is protected
from moisture by a moisture barrier of a fatty composition such as chocolate
(id. at 4).
From these findings, we agree with the Examiner’s conclusion of
obviousness, in that we agree that it would have been obvious to one of
ordinary skill in the frozen confectionary art at the time of the invention to
have substituted the well known water ice composition taught by Huber for
the generically-taught water ice composition in the molded frozen
confectionary disclosed by Tresser (id. at 4). We note that Appellants have
not disputed that Huber teaches the identical water ice center composition as
set forth in the claims on appeal (see the Brief and Reply Brief in their
entirety).
Appellants argue that because Huber and Tresser are directed towards
inventions with different objectives, there is no motivation to combine (Br.
10, referring to the Cathenaut Affidavit; Reply Br. 2). Appellants further
argue that Huber is entirely related to a specific soft ice product, never
becomes a molded center of water ice, and is made to be consumed
immediately with no need for a wafer cone having a moisture barrier (Br.
10; Reply Br. 2). Appellants argue that Tresser is directed to composite ice
4
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