Appeal 2007-0726
Application 10/264,561
with claim 1. Appellants have not overcome the rejection by showing
insufficient evidence of obviousness or by a showing of secondary indicia of
nonobviousness. See In re Kahn, 441 F.3d at 985-86, 78 USPQ2d at 1335
(“On appeal to the Board, an applicant can overcome a rejection by showing
insufficient evidence of prima facie obviousness or by rebutting the prima
facie case with evidence of secondary indicia of nonobviousness.” (emphasis
omitted)).
B. Group 2, Claim 3
With respect to Group 2, Appellants contend that none of the cited
references teaches or suggests frying the dough-coated material as required
by the claims (Br. 8-9). According to Appellants, Chino discloses that it is
impossible to control the shape of coated edible cores that are fried as
disclosed in Lanner and Mochizuki (id.).
The Examiner finds that Lanner teaches frying (Answer 10). The
Examiner also finds that, if it is obvious to use potato starch as shown in the
prior art, then, the same property will be obtained when it is used in the
process of Lanner (id.).
We select claim 3 to represent the issues on appeal. The issue is:
Have Appellants shown there is insufficient evidence to support the
Examiner’s conclusion that it would have been obvious to one of ordinary
skill in the art to fry an edible core coated with the claimed mixture?
Appellants have not convinced us that the evidence is insufficient to
support the rejection.
As a first matter, Chino does not disclose that frying according to
Lanner will not work, only that one can control shape by using a mold (FF
10). Moreover, as evidenced by Mochizuki, those of ordinary skill in the art
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