Appeal 2007-0211
Application 10/305,577
Appealed claims 1, 2, 4-6, 8-13, and 16-28 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Izzo in view of Schwartzberg
and Schwartz.
Appellant does not provide separate substantive arguments for the
various claims on appeal (re-stating the features of the independent claims
does not qualify as a substantive argument). Accordingly, all the appealed
claims stand or fall together with claim 1.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of Section 103 in view of the applied prior
art. Accordingly, we will sustain the Examiner’s rejection.
Appellant does not dispute that Izzo, like Appellant, discloses a w/o/w
emulsion for a low-fat food from which “no sour taste is perceived” (Izzo,
col. 9, ll. 48-49). Also, we agree with the Examiner that Izzo fairly teaches a
class of w/o/w emulsions that includes those having more acidulant in the
primary, dispersed phase than in the aqueous phase. In relevant part, Izzo
teaches that the emulsion may comprise 80 % of the primary phase A and 20
% of the aqueous phase B (Izzo, col. 7, ll. 41-44), and discloses that aqueous
phase b, which is similar in composition to aqueous phase B, contains an
amount of acid that is relatively small despite its low pH (Izzo, col. 6, ll. 10
et seq. and col. 9, ll. 41-43). Accordingly, we are satisfied that one of
ordinary skill in the art would have found it obvious to formulate a low-fat
food comprising a w/o/w emulsion having more acidulant in the primary
phase in view of the Izzo disclosure.
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