Ex Parte Enz et al

Patent Trial and Appeal Board

Feb 28, 2019

14763017 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/763,017 07/23/2015
106306 7590 03/04/2019
DIEDERIKS &WHITELAW, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
FIRST NAMED INVENTOR
Jeffrey F Enz
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
7779US02 2070
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
03/04/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mail@dwpatentlaw.com
gmi.mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte JEFFREYF. ENZ, DANA DRONEN, and
ANDREA KLOSTERMANN
Appeal2018-003415
Application 14/763,017
Technology Center 1700
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
N. WHITNEY WILSON, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-26. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision refers to the Specification ("Spec.") filed July 23, 2015,
Appellant's Appeal Brief ("Appeal Br.") filed October 3, 2017, the
Examiner's Answer ("Ans.") dated December 13, 2017, and Appellants'
Reply Brief ("Reply Br.") filed February 8, 2018.
2 Appellant is the Applicant, General Mills, Inc., which is identified in the
Appeal Brief as the real party in interest (Appeal Br. 4).
Appeal2018-003415
Application 14/763,017
STATEMENT OF THE CASE
The invention relates to a shelf-stable baked brownie (Spec. 1: 1 7).
Appellant discloses that the brownie has a moisture level of about 16% and
is formed from a batter comprising 11-14 wt% flour, 40-50 wt% sweetener,
14.5-16.5 wt% whole egg, shortening, and, optionally cocoa, wherein the
sweetener includes sucrose, com syrup, and fructose, present in a ratio of
2.5-3.5/0.5-1.5/0.05---0.15 (id. at 1: 18-21 ). Appellant further discloses that
the moisture content is carefully managed by product design in order to
achieve brownies with extended shelf life (id. at 2:31-32). Appellant also
discloses that undesirable sugar and fat recrystallization is also inhibited by
product design (id. at 3: 1-2).
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal. The limitations at issue
are italicized.
1. A shelf stable, baked, brownie formed from a batter, the batter
compnsmg:
11-14 wt% flour;
40-50% sweetener comprising sucrose, com syrup and
fructose, present in a ratio of 2.5-3.5/0.5-1.5/0.05-0.15;
14.5-16.5% whole egg; and
shortening,
the baked brownie having a moisture level of about 16%.
Independent claim 18 recites a brownie batter having similar
ingredients and amounts as the batter recited in claim 1.
REFERENCES
The Examiner relies on the following prior art references:
Narayanaswamy
Boldon
US 6,228,403 B 1
US 6,391,366 Bl
2
May 8, 2001
May 21, 2002
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Application 14/763,017
Karwowski
Cristadoro
US 2010/0303991 Al
US 2010/0310749 Al
REJECTIONS
December 2, 2010
December 9, 2010
The Examiner maintains, and Appellants request our review of, the
following grounds of rejection under 35 U.S.C. § I03(a):
1. Claims 1, 2, 4--17, and 25 as unpatentable over Narayanaswamy
in view of Cristadoro and Karwowski;
2. Claim 3 as unpatentable over Narayanaswamy in view of
Cristadoro and Karwowski, and further in view of Boldon; and
3. Claims 18-24 and 26 as unpatentable over Narayanaswamy in
view of Cristadoro and Boldon.
ANALYSIS
For purposes of this appeal, to the extent that the claims on appeal are
separately argued, we will address them separately consistent with 3 7 C.F .R.
§ 4I.37(c)(l)(iv) (2017).
Claim 1
Appellant does not argue claims 1, 3, 4, 7-12, and 25 or Rejections 1
and 2 separately. We select claim 1 as representative in addressing
Appellant's arguments. Claims 3, 4, 7-12, and 25 stand or fall with claim 1.
The Examiner finds that Narayanaswamy discloses a brownie baked
from a batter comprising about 10-40% flour, about 25-70% sugar, about 0-
5% egg solids, and about 0-20% fat, wherein the sugar can be sucrose, with
up to 30% com syrup, and that ordinary granulated sugars may be used
including fructose (Ans. 4). In addition, the Examiner finds that
Narayanaswamy discloses that the batter may include about 1-8%
humectant (id.). The Examiner further finds that Narayanaswamy discloses
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that the batters have a moisture content of about 5-20% which is provided
primarily by liquid eggs, which provides a whole egg content within the
range recited in claim 1 (id.).
The Examiner acknowledges that Narayanaswamy fails to teach the
moisture content of the baked brownie and the recited proportions of
sucrose, com syrup, and fructose (Ans. 4). However, the Examiner finds
that Cristadoro discloses moisture-retaining baked goods including a
humectant sugar such as fructose (id.). The Examiner concludes that it
would have been obvious to use fructose in addition to sucrose and com
syrup in Narayanaswamy's brownie batter in order to serve as both a
sweetener and a humectant because N arayanaswamy teaches that sucrose,
com syrup, and fructose may be included as the sweetener and the batter
may include 1-8% humectant, and because Cristadora teaches that fructose
is a humectant sugar (id. at 5). With regard to the relative proportions of
sucrose, com syrup, and fructose, the Examiner determines that it would
have been obvious to vary the amount/proportion of these sugars as a matter
of taste preference (sweetness) (id.).
The Examiner also finds Karwowski teaches that brownies generally
have moisture contents less than about 20% (Ans. 4). The Examiner
concludes that it would have been obvious to bake Narayanaswamy's batter
to obtain a brownie having a moisture content normally found in brownies as
taught in Karwowski (id. at 5). In addition, the Examiner finds that the
ordinary artisan would have expected Narayanaswamy's brownie to have a
long shelf life because it is made from the same ingredients as recited in
claim 1 (id.). In support of the obviousness of the claimed product, the
Examiner cites In re Levin, 178 F.2d 945, 948 (CCPA 1949):
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new recipes or formulas for cooking food which involve the addition
or elimination of common ingredients, or for treating them in ways
which differ from the former practice, do not amount to invention
merely because it is not disclosed that, in the constantly developing art
of preparing no one else ever did the particular thing upon which the
applicant asserts his right to patent. In all such cases, there is nothing
patentable unless the applicant by a proper showing further establishes
a coaction or cooperative relationship between the selected ingredients
which produces a new, unexpected, and useful function.
Appellant argues that Narayanaswamy is not directed to a shelf-stable,
baked brownie, but instead is directed to a shelf-stable brownie batter
(Appeal Br. 7). Appellant asserts that although Narayanaswamy's batter
could be baked to make brownies, such brownies are intended for immediate
consumption or refrigeration (id.). As such, Appellant contends that the
Examiner fails to provide any evidence that Narayanaswamy's brownies
would be shelf-stable (id.).
This argument is not persuasive of reversible error. Products must be
distinguished from the prior art on the basis of structure, and where there is
reason to believe that the structure of the prior art inherently possesses a
claimed property, the burden shifts to Appellant to show that the claimed
property patentably distinguishes the claimed product from the prior art
product. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997); In re
Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re Hallman, 655 F.2d 212,
215 (CCPA 1981); In re Best, 562 F.2d 1252, 1254-56 (CCPA 1977). Cf In
re Crish, 393 F.3d 1253, 1259 (Fed. Cir. 2004). As the Examiner finds,
Narayanaswamy discloses both the brownie batter and the baked brownie
product (Ans. 8). We note that Appellant claims both the baked brownie
product ( claim 1) and the brownie batter ( claim 18). Moreover, as the
Examiner finds, Narayanaswamy's batter and brownie are made from the
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same ingredients as recited in the claims and, therefore, would possess the
same properties as Appellant's batter and brownies (Ans. 8).
Further, as to shelf-stability, we note Appellant discloses that the
inventive brownies "are shelf stable for at least 1 month at room temperature
after packaging, in some embodiments at least 3 months, and in other
embodiments at least 6 months, and in other embodiments up to 9 months"
(Spec. 2:22-25). Thus, shelf-stability within the meaning of this application
is at least 1 month at room temperature after packaging. Appellant fails to
establish either by persuasive technical reasoning or an evidentiary showing
that Narayanaswamy's brownies are not shelf-stable within this meaning.
Appellant further argues that the Examiner's conclusion that it would
have been obvious to vary the amounts and proportions of sucrose, com
syrup, and fructose as a matter of taste preference, at best, seems to address
the total amount of sweetener rather than the particular ratio of these
sweeteners (Appeal Br. 7). In addition, Appellant asserts that because
Narayanaswamy is not looking to make a shelf-stable brownie, there is no
motivation to modify Narayanaswamy to vary the amount and proportions of
sucrose, com syrup, and fructose to arrive at the claimed ratio of sweeteners
found by the Inventors to be critical to shelf-stability (id. at 8).
Appellant also argues that the Examiner fails to set forth any
reasoning why the ordinary artisan would deviate from Narayanaswamy's
teaching of a humectant preferably being sorbitol, xylitol, mannitol,
glycerin, glycerol, propylene glycol, and mixtures thereof (Appeal Br. 8). In
other words, Appellant contends that the Examiner has not established any
reason to modify Narayanaswamy's batter and brownie to include fructose
as a humectant as taught by Cristadoro (id.).
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These arguments are also not persuasive of reversible error. A
preponderance of the evidence supports the Examiner's determination that it
would have been obvious to vary the amounts and proportions of sucrose,
com syrup, and fructose as a matter of taste preference to arrive at the
claimed ratios of these sweeteners. Narayanaswamy teaches that the
brownie batter and, therefore, resulting brownie may include 25-70% of a
mix of sweeteners including sucrose, up to about 30% com syrup, and
fructose (Narayanaswamy 3:50-62). Thus, Narayanaswamy teaches a range
of sweeteners, 25-70%, that encompasses the claimed range of 40-50%, as
well as a range of com syrup, up to about 30%, that encompasses the
claimed range of 20-30%. "[W]here there is a range disclosed in the prior
art, and the claimed invention falls within that range, there is a presumption
of obviousness." Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d
1317, 1322 (Fed. Cir. 2004).
Narayanaswamy also teaches that the batter may include about 1-8%
of any commonly employed humectant ingredient (id. at 5:58---63).
Although Narayanaswamy prefers non-sugar-based humectants, Cristadoro
teaches known humectants include both sugar-based and non-sugar-based
ingredients, wherein sugar-based humectants include fructose (Cristadoro ,r
17). Thus, one of ordinary skill in the art would have found it obvious to use
1-8% fructose as the humectant in Narayanaswamy as a known humectant.
An express teaching need not be present in the art to support the substitution
of one element for another element used for the same purpose. In re Fout,
67 5 F .2d 297, 301 (CCP A 1982). Further, the substitution of one known
element for another is obvious when the combination yields no more than a
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predictable result, as here (KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416
(2007)).
Where the prior art discloses a range, and the claimed invention falls
within that range, the burden shifts to Appellant to establish that ( 1) the prior
art taught away from the claimed invention, In re Geisler, 116 F.3d 1465,
1471 (Fed. Cir. 1997); (2) there were new and unexpected results relative to
the prior art, In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); or (3)
there are other pertinent secondary considerations, Galderma Laboratories
v. L.P. Tolmar, Inc., 737 F.3d 731 (Fed. Cir. 2013). Here, Appellant
contends that the claimed ratio of sweeteners is critical because "it leads to
the shelf stability of the product," as demonstrated in the Specification,
Table 2 and page 5, lines 12-18 (Appeal Br. 7; see also Reply Br. 2). Thus,
Appellant urges that even if it was known that adjusting the overall amount
of sugars in a batter affects its sweetness, "it was not known that adjusting
the ratio of sucrose, com syrup and fructose would have an effect on the
shelf stability of the batter" (Appeal Br. 7; Reply Br. 3--4). Also, Appellant
contends that the Examiner has not established that the ratio of sucrose, com
syrup, and fructose was known to be a result-effective variable (Reply Br. 2-
3).
Appellant's arguments and evidence are not persuasive that the
claimed ratio of sweeteners is critical to achieve the claimed shelf-stable
brownie. As discussed above, claim 1 merely requires that the brownie is
shelf-stable for at least 1 month at room temperature after packaging. The
Examiner determines that "[t]here is nothing in [T]able 2 that conclusively
shows that the claimed ratio [ of sweeteners] is critical to the shelf life [ of the
brownie]" (Ans. 9). We agree. Indeed, we note that Comparative Examples
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A---C, in addition to Appellant's inventive Example, all achieve a shelf-
stability well in excess of 1 month at room temperature after packaging
(Spec. Table 2 and 13:7-17). Moreover, Appellant fails to demonstrate how
a single example with a single ratio of sucrose, fructose, and a specific com
syrup is commensurate in scope with the range of amounts recited in claim
I. See In re Peterson, 315 F.3d 1325, 1329-31 (Fed. Cir. 2003); see also In
re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d
1029, 1035 (CCPA 1980); In re Hyson, 453 F.2d 764, 786 (CCPA 1972).
We further note Comparative Examples B and C achieve different shelf
stabilities in spite of having similar ratios of sucrose to com syrup. This
result tends to undercut Appellant's argument that sweetener ratio is critical
to shelf-stability.
As to Appellant's argument that the ratio of sweeteners has not been
shown to be a result-effective variable, we note that Narayanaswamy teaches
sucrose and com syrup amounts that encompass the claimed relative
amounts, that fructose may be included as part of the sweetener, and that
about 1-8% of any commonly used humectant may be added to the batter.
We further note that Cristadoro teaches known humectants include non-
sugar-based humectants such as those specifically named in
Narayanaswamy, and sugar-based humectants such as fructose. Thus, there
is sufficient support for the Examiner's conclusion that it would have been
obvious to include 1-8% fructose in Narayanaswamy's batter, which amount
significantly overlaps the claimed amount of fructose. Finally, the Examiner
determines that varying sucrose, com syrup, and fructose, within the ranges
taught by Narayanaswamy would have been obvious as a matter of taste
preference. A person of ordinary skill in the art would readily recognize and
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consider obvious from Narayanaswamy that these amounts could be varied
within the disclosed ranges and that doing so would vary the taste and
texture profile of the final product, and especially with regard to the amount
and type of sweeteners included so as to achieve the desired taste. Appellant
fails to identify error in either the Examiner's findings or reasoning
supporting this conclusion.
Appellant next argues that Narayanaswamy fails to disclose the
moisture content of any brownie baked from its batter, whereas Cristadoro
teaches a brownie having a moisture content of 25--40% (Appeal Br. 9).
Appellant also contends that Karwowski fails to teach the particular
ingredients and the specific moisture content for brownies (id.). Appellant
urges that the Examiner fails to demonstrate that Narayanaswamy's batter
could be modified so as to result in a brownie having the claimed moisture
content and fails to provide motivation to modify Cristadoro's teaching
regarding moisture content or to look to Karwowski for a specific moisture
content of about 16% (id.; see also Reply Br. 5).
Appellant's argument misapprehends the Examiner's rejection which
relies on Narayanaswamy's teaching of the moisture content of the brownie
batter and Karwowski' s teaching that the moisture content of brownies and
related baked products is less than about 20% (Ans. 4--5). The Examiner
relies on Cristadoro only for its teaching regarding known sugar-based and
non-sugar-based humectants (id.; see also id. at 11 ("Cristadoro is not relied
upon for the teaching of the moisture content")). Narayanaswamy teaches
that the brownie batter has a moisture content of about 5-20%, which is
primarily provided by liquid eggs (Narayanaswamy 2:22 and 5:35--45).
Karwowski teaches that brownies, among other baked products, generally
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have a moisture content less than about 20% (Karwowski ,r 77). Because
these moisture content ranges encompass the claimed moisture content of
about 16%, there is a presumption of obviousness. See Iron Grip Barbell,
392 F.3d at 1322. We note Appellant does not argue that the prior art
teaches away from the claimed moisture content of 16% and fails to provide
any evidence that this moisture content provides unexpected results.
As to Levin, Appellant argues that this decision is inapplicable to the
present case because it predates Graham v. Deere, 383 U.S. 1 (1966) and the
Examiner relies on dicta within Levin, rather than its holding (Appeal Br.
10). Initially, we note that the Examiner establishes a prima facie case of
obviousness by a preponderance of the evidence without the necessity to rely
on Levin. Further, we find no inconsistency between the principle the
Examiner highlights in citing Levin and the obviousness analysis set forth in
Graham and confirmed in KSR. Levin is limited to the art of cooking food,
and more particularly, to new recipes or formulas for cooking food which
involve the addition or elimination of common ingredients, or for treating
them in ways which differ from the prior art. However, Levin expresses the
practical reality in this art that, absent evidence of a new and unexpected
result of a coaction or cooperative relationship between the selected
ingredients, recipes including new combinations of common ingredients
would have been prima facie obvious. This principle is consistent with
Graham as a recognition that the scope and content of the prior art of food
science is both old and vast, where differences often exist only in the
selection of different, yet known, ingredients, and the level of ordinary skill
in the art is such that the properties, characteristics, and functions of these
known ingredients ( and often their coactions) are also known.
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Likewise, in KSR, the Supreme Court emphasized "the need for
caution in granting a patent based on the combination of elements found in
the prior art," and discussed circumstances in which a patent might be
determined to be obvious. KSR, 550 U.S. at 415. In particular, the Supreme
Court emphasized that "the principles laid down in Graham [ v. John Deere
Co., 383 U.S. 1 (1966)] reaffirmed the 'functional approach' of Hotchkiss [v.
Greenwood, 52 U.S. 248 (1850)]," and reaffirmed principles based on its
precedent that "[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results." Id. at 415 and 416.
Accordingly, we sustain the Examiner's obviousness rejection of
claims 1, 3, 4, 7-12, and 25.
Claim 2
Claim 2 depends from claim 1 and further requires a com syrup
having a DE (dextrose equivalent) of 42.
Appellant argues that the Examiner fails to provide a reason why the
ordinary artisan would choose a com syrup with a DE of 42, rather than
adjusting another sweetener or choosing a different DE value when
attempting to adjust the brownie's sweetness (Appeal Br. 11). This
argument is not persuasive of reversible error in the Examiner's rejection of
claim 2. The fact that there may be multiple ways to adjust the sweetness of
Narayanaswamy's brownies does not alone negate the obviousness of each
of those ways. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Furthermore, the Examiner responds that the DE of com syrup is an
indication of its degree of sweetness and concludes that the ordinary artisan
would have found it obvious to select a com syrup of a particular DE
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depending on the desired sweetness intensity (Ans. 12). Further the
Examiner notes that this rationale is the motivation for selecting any
particular DE (id.). Appellant does not assert that a com syrup having a DE
of 42 is not known and does not argue or present evidence that a DE of 42
produces new and unexpected results.
Accordingly, we sustain the Examiner's obviousness rejection of
claim 2.
Claims 5 and 6
Claim 5 depends from claim 1 and further requires that the ratio of
sucrose, com syrup, and fructose be 3/1/0.1. Claim 6 similarly depends
from claim 1 and further requires that the sweetener includes 70-80%
sucrose, 20-30% com syrup, and 0.5-5% fructose.
Appellant argues that even if it was known that adjusting the overall
or total amount of sugars affects sweetness, it was not known that adjusting
the ratio of sucrose, com syrup, and fructose would have an effect on shelf-
stability of the batter (Appeal Br. 11-12). This argument is substantially the
same as raised regarding claim 1, which was not found persuasive.
Therefore, for the same reasons given above and in the Examiner's Answer,
this argument is likewise not persuasive of reversible error with regard to the
obviousness rejection of claims 5 and 6.
Claim 13
Claim 13 depends from claim 1 and further requires that the baked
brownie has a density of about 1 glee.
Appellant argues that because the Examiner does not point to any
teaching in the prior art regarding density, the Examiner's conclusion that
the claimed density would have been obvious is insufficient (Appeal Br. 12-
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13). This argument is not persuasive of reversible error. As the Examiner
finds, Narayanaswamy teaches ranges for ingredients in the brownie batter
(Ans. 13). The Examiner also finds that brownie texture and density varies
over these ranges, and the producing the desired texture and density would
have been within the ordinary skill in the art by varying the ingredients over
the disclosed ranges (id.). Moreover, the Examiner finds that because these
ingredients and amounts, and the process of baking the brownie, are the
same as claimed, obtaining a brownie with the recited density would have
been obvious to those of ordinary skill in the art (id.). Appellant does not
refute, or otherwise address, these findings. Accordingly, we sustain the
Examiner's obviousness rejection of claim 13.
Claims 14-16
Claims 14--16 depend, directly or indirectly, from claim 1 and further
require a brownie shelf life of at least 1, 3, or 6 months, respectively.
Appellant argues that Narayanaswamy clearly does not disclose the
same product because it does not disclose the claimed ratio of sweeteners
(Appeal Br. 13). This argument is substantially the same as raised against
the Examiner's rejection of claim 1, which was not persuasive of reversible
error. Therefore, for the same reasons as given above, we sustain the
Examiner's obviousness rejection of claims 14--16.
Claim 17
Claim 1 7 depends from claim 1 and further requires that the batter
comprises 12-13 wt% flour, 43--44% sweetener, and 15% whole egg.
Appellant repeats the argument that the Examiner fails to provide
specific teachings in the prior art for, or any reason to select, the claimed
amounts and ratios (Appeal Br. 14). This argument is substantially the same
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as raised against the Examiner's rejection of claim 1, which was not
persuasive of reversible error. Therefore, for the same reasons as given
above, we sustain the Examiner's obviousness rejection of claim 17.
Claim 18
Appellant does not argue claims 18, 19, 21-24, and 26 separately. We
select claim 18 as representative in addressing Appellant's arguments.
Claims 19, 21-24, and 26 stand or fall with claim 18.
Independent claim 18 recites a brownie batter substantially the same
as in claim 1. Appellant's arguments against the rejection of this claim are
substantially the same as raised against the Examiner's rejection of claim 1,
which were not persuasive of reversible error. Therefore, for the same
reasons as given above, we sustain the Examiner's obviousness rejection of
claims 18, 19, 21-24, and 26.
Claim 20
Claim 20 depends from claim 18 and further requires that the ratio of
sucrose, com syrup, and fructose be 3/1/0.1.
Appellant argues that even if it was known that adjusting the overall
or total amount of sugars affects sweetness, it was not known that adjusting
the ratio of sucrose, com syrup, and fructose would have an effect on shelf-
stability of the batter (Appeal Br. 16). This argument is substantially the
same as raised regarding claim 1 ( and claims 5 and 6), which was not found
persuasive. Therefore, for the same reasons given above and in the
Examiner's Answer, this argument is likewise not persuasive of reversible
error with regard to the obviousness rejection of claim 20.
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DECISION
Upon consideration of the record, and for the reasons given above and
in the Appeal and Reply Briefs, the decision of the Examiner rejecting
claims 1-26 under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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