Appeal 2006-3031
Application 10/299,734
confections that are stored for long durations, and thus “teaches away” from
being combined with the Huber product (Br. 11; Reply Br. 3). Appellants
argue that even if combinable, the cited references do not disclose or suggest
a molded center of a water ice as required by claim 1 on appeal (Br. 11-12;
Reply Br. 3).
Appellants’ arguments are not persuasive. We determine that Tresser
clearly discloses “ice confections” generically that are used as a molded
center of a frozen confectionary where the edible mold is a wafer coated
with a moisture barrier (Tresser 1:7-9; 2:27-37; 3:7-13; 3:52-59; 7:21-25;
9:36-41; and 14:43-47). Appellants have not presented any argument why
one of ordinary skill in this art would not have used the specific (known)
water ice composition taught by Huber as the water ice confection mix of the
molded product disclosed by Tresser. As correctly stated by the Examiner
(Office Action dated Aug. 5, 2005, page 4), the water ice composition used
by Tresser is considered “molded” since the soft ice composition is
introduced into the wafer cone (i.e., mold) and further frozen (molded). See
Tresser 2:27-37 and 3:52-59. The arguments concerning the immediate
consumption of the Huber product and the “long duration” storage
contemplated by Tresser are not material to the combination of references as
set forth above, although we note that the product of Huber is tested for
melting after several hours (Huber 5:43-57, Examples I and II).
Regarding the Cathenaut Affidavit dated Dec. 20, 2005, we agree with
the Examiner that this Affidavit merely repeats the arguments discussed
above and includes no quantitative evidence (Advisory Action mailed Jan.
19, 2006, page 2).
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