Appeal No. 2007-0172
Application No. 10/461,361
cake portions soaked with syrup having different flavorings as claimed.”
(Id. at 4.)
The Examiner also states that Fresh Ways “discloses different types of
cake having sponge layers and different filling material such as passionfruit,
espresso, lime and rum, [and] chocolate mousse” and that Bake Me
“discloses multilayer cakes with different flavorings such as saffron,
Moroccan mint tea, Iranian spiced orange tea, rose petal [t]ea, rose water,
[and] pistachio nuts.” (Id.)
The Examiner argues that:
Cake having multiple flavors is well known in the art as
shown by the cookbooks and the article. It would have been
obvious to one skilled in the art to soak the sponge portions
with different kinds of flavored syrups when one wants to
obtain different flavors and taste. The cake cookbook teaches
syrup can be prepared to have different flavor[s] by adding
various kind[s] of ingredient[s].
(Id.) The Examiner argues that it would have been obvious to include
different specific flavors depending on the available ingredients and the
desired taste. (Id.)
In essence, the Examiner “takes the position that the changing of
flavor and the use of any specific flavor in the making of a cake would have
been obvious to one skilled in the art.” (Id. at 5.) The Examiner relies on In
re Levin, 178 F.2d 945, 948, 84 USPQ 232, 234 (CCPA 1949) for the rule
that
new recipes or formulas for cooking food which involve the
addition or elimination of common ingredients . . . do not
amount to invention merely because it is not disclosed that, in
the constantly developing art of preparing food, no one else
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