Appeal No. 2007-0172
Application No. 10/461,361
Ultimate Cake and Bake Me. Appellant’s arguments do not overcome this
prima facie case of obviousness. Therefore, we affirm the rejection of
claim 1 under 35 U.S.C. § 103. Claims 19 and 20 fall with claim 1.
However, because our reasoning differs from that of the Examiner, we
designate our affirmance as a new ground of rejection, in order to give
Appellant a fair opportunity to respond.
Claim 3 identifies the flavor combination as lemongrass, mango, and
caramel. Appellant argues that “the cited references do not teach or disclose
this specific combination of flavors.” (Br. 6.) However, for the reasons
discussed above, we conclude that this combination of flavors would have
been obvious. Therefore, we affirm the rejection of claim 3 under 35 U.S.C.
§ 103, but designate our affirmance as a new ground of rejection.
Claims 4-6 depend from claim 3 and require that the cake also
contains pineapple, ginger, pandan, and coconut flavors. Claims 7-10
require the flavor combination of mulled wine, rhubarb, and elderflower.
Claims 11-14 require the flavor combination of lavender, basil, and cassis.
Claims 15-18 require the flavor combination of passion fruit, mint, and
eucalyptus.
Appellant argues that the cited references do not disclose these
combinations of flavors. (Br. 7-8.) We conclude that the Examiner has not
set forth a prima facie case that cakes containing the specific flavors recited
in claims 4-18 would have been obvious. We therefore reverse the rejection
of claims 4-18 under 35 U.S.C. § 103.
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: September 9, 2013