Appeal 2006-3314
Application 09/761,322
Boehm teaches that it was known in the art at the time of the present
invention to enrobe filled cookies such as OREO® cookies in a chocolate or
fudge coating. Boehm, col. 1, l. 67- col. 2, l. 7. See
http://www.kraft.com/100/innovations/oreo.html (OREO® cookies were
first introduced in 1912. Fudge Covered OREO® cookies were introduced
in the 1980’s).1 See also Appellants’ Specification, p. 1, ll. 11-15
(“Sandwich coolies [sic] are well known and are available commercially
under a number of names including OREO®, NUTTER BUTTER®,
SNACKWELL'S® and many others.”) The base cake of an OREO® cookie
is a baked product containing a three-dimensional image2 thereon. The
chocolate or fudge coating is a layer of confection covering the image.
Removing a portion of the outer coating would at least partially reveal the
image.
1 OREO® cookies were first introduced by Nabisco.
http://www.kraft.com/100/timeline/time_1910s.html. Philip Morris
Companies Inc., Kraft Foods’ parent company, acquired Nabisco Holdings
in 2000 at which time the Nabisco brands were integrated into the Kraft
Foods business. http://www.kraft.com/100/timeline/time_2000s.html. Kraft
Foods Holdings, Inc. is said to be the real party in interest in the present
appeal Br. 2.
2 We note that appealed claims 6, 7, and 12 recite specific three-dimensional
images. Where claimed features of patent utility claims relate to
ornamentation only and have no mechanical function whatsoever, they
cannot be relied upon for patentability. See In re Seid, 161 F.2d 229, 231,
73 USPQ 431, 433 (CCPA 1947).
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