Appeal 2007-0211
Application 10/305,577
As for the claimed emulsifier having an HLB of less than about 9, we
fully concur with the Examiner that Schwartzberg evidences the obviousness
of utilizing such emulsifiers in food compositions, particularly in w/o
emulsions. Appellant has not asserted, let alone established with objective
evidence, that the claimed class of emulsifiers produces unexpected results.
Appellant also contends that the product of Izzo is a solid with butter-
like properties, whereas the claimed emulsion has a viscosity, at ambient
temperature, that is “flowable like a sauce, salad dressing or mayonnaise”
(Br. 10, last ¶). However, the Examiner properly cites Schwartz as evidence
that at 75oF, ambient temperature, margarine has a viscosity of 16,000 to
18,000 centipoise, which range is directly within the considerably broader
claimed range. Since ambient or room temperature is considered in the art
to be within 65-85oF (Schwartz, col. 3, ll. 17-18), it is reasonable to
conclude that the food product of Izzo has a viscosity within the claimed
range at ambient temperature. Manifestly, it is well known that butter left
out of the refrigerator at room temperature acquires a consistency, or
viscosity, like a sauce or salad dressing.
Appellant states that it may readily be gleaned from Examples 1-5 of
the Specification that “the w/o/w emulsion unexpectedly displays excellent
stability characteristics and is free of a sour taste” (Br. sentence bridging pp.
5-6). However, Appellant has not established on this record that the
Specification data would be considered truly unexpected by one of ordinary
skill in the art, especially in light of Izzo’s disclosure that the product is free
of a sour taste. In re Merck & Co., 800 F.2d 1091, 1099, 231 USPQ 375,
381 (Fed. Cir. 1986). Significantly, Appellant has offered no analysis of the
data but has apparently left it to our perusal. Suffice it to say, it is not within
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Last modified: November 3, 2007