Ex Parte Soldani

Board of Patent Appeals and Interferences

Mar 10, 2009

10695833 (B.P.A.I. Mar. 10, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CHRISTIANA SOLDANI
____________

Appeal 2009-1288
Application 10/695,833
Technology Center 1700
____________

Decided: 1 March 10, 2009
____________

Before BRADLEY R. GARRIS, PETER F. KRATZ, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 3, 5, 6, and 8-12. We have
jurisdiction pursuant to 35 U.S.C. § 6.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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Appellant’s claimed invention is directed to a method for making a
glassy amorphous confectionary product comprising at least one acidic
component and at least one sugar alcohol that is not a monosaccharide sugar
alcohol. The method includes a starting material formation step, an
evaporation step to form an intermediate material, and a cooling step. The
intermediate material water content is below 3 percent. Claim 1 is
illustrative and reproduced below:
1. A method for the manufacture of a glassy amorphous solid as a
confectionery material, the glassy amorphous solid comprising at least one
acidic component and at least one sugar alcohol which is not a
monosaccharide sugar alcohol, the method comprising the steps of:

(i) forming a liquid starting material comprising water, the at least
one acidic component, and the at least one sugar alcohol which is not a
monosaccharide sugar alcohol;

(ii) evaporating water from the liquid starting material under
conditions at which the acidic component does not cause significant
hydrolysis of the sugar alcohol to dissolve the acidic component in the liquid
and to remove at least part of the water to form an intermediate material,
wherein the evaporating is carried out at a temperature that does not exceed
145°C; and

(iii) cooling the intermediate material to form a glassy amorphous
solid that has improved transparency compared to a glassy amporphous solid
in which the acidic component has been added after a cooling step, wherein
the water content of the intermediate material is reduced to below 3%.

The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Liebrand 3,738,845 Jun. 12, 1973
Aldrich 4,154,867 May 15, 1979
Rivier EP 1 151 673 A2 Nov. 11, 2001

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The Examiner maintains the following rejections:
Claim 3 stands rejected under 35 U.S.C. § 112, second paragraph as
being indefinite for failing to particularly point out and distinctly claim the
subject matter which applicant regards as the invention. Claims 1, 3, 5, 6,
and 8-12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Rivier. Claims 1, 3, 5, 6, and 8-12 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Aldrich or Liebrand in view of Rivier.
The claims subject to the last two mentioned rejections are argued
together as a group. Accordingly, we select claim 1 as the representative
claim on which we shall decide this appeal as to both obviousness grounds
of rejection before us.

PRINCIPAL ISSUES
1. Has Appellant identified reversible error in the Examiner’s rejection
of claim 3 under the second paragraph of 35 U.S.C. § 112 by the argument
that there is proper antecedent basis for “the cooking step” of claim 3 in
referenced claim 1 for one of ordinary skill in the art to understand the scope
of the subject matter embraced by dependent claim 3, when claim 3 is read
in light of the Specification?
2. Has Appellant identified reversible error in the Examiner’s
obviousness rejection of the appealed claims over Rivier based on the
argument and submitted copy of a Declaration2 under 37 C.F. R. 1.132 of

2 The submitted copy of the Declaration under 37 C.F.R. § 1.132 by
Christiana Soldani (the named inventor) is incorrectly labeled as an
Affidavit (App. Br.; Exhibit F).
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named inventor, Christiana Soldani urging that Rivier fails to teach or
suggest adding an acidic component to a liquid water-containing starting
material and/or evaporating the water under conditions at which significant
hydrolysis of the sugar alcohol is not caused by the added acidic component,
as set forth in representative claim 1?
3. Has Appellant identified reversible error in the Examiner’s
obviousness rejection of the appealed claims over Aldrich or Liebrand in
view of Rivier based on the argument that “Aldrich, Liebrand, and Rivier are
all deficient with respect to the present claims . . . " and that, consequently, a
combination of the applied references that would have led one of ordinary
skill in the art to Appellant’s claimed subject matter would not have been
suggested (App. Br. 18-19)?

SUMMARY DECISION
We answer the aforementioned questions in the negative.
Accordingly, we affirm the Examiner’s rejections.

FACTUAL FINDINGS
The following findings of fact are supported by a preponderance of
the evidence. Additional findings of fact, as necessary, may appear in other
portions of this opinion.
1. Appellant acknowledges that “[h]ard candy is generally made by a
process in which a mixture of the sugar or sugar alcohol and water is heated,
generally under vacuum, at a temperature of about 130-150°C” (Spec. 1).
2. Rivier discloses forming boiled candy casings from “an aqueous
mixture of saccharides and/or polyhydric alcohols,” which mixture “is
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boiled in suitable proportions in a cooker at a temperature of 130-150°C,
preferably under vacuum conditions, to reach a high final solids content of
less than 2.5 %, preferably of about 1 %” (¶ 0059).
3. Rivier teaches that “[h]eat resistant functional ingredients may be
added at this stage” of cooking (id.).
4. Rivier discloses that the casing composition can include additives,
such as acids, in conventional amounts (¶ 0052).
5. Rivier discloses that the casing is made using polyalcohol
“preferably selected from the group consisting of isomalt, sorbitol, maltitol,
lactitol, mannitol, polydextrose, and combinations thereof” (id.).
6. Rivier furnishes several Examples wherein a cooking temperature
of 155°C is employed and the acid is added after cooking at that temperature
which is higher than the previously noted and described cooking temperature
range of 130-150°C otherwise taught by Rivier (¶ 0073; Examples 1 and 2; ¶
0059).
7. The Examples presented by Rivier are described as being “[n]on-
limiting examples” (Rivier; ¶ 0072).
8. Appellant acknowledges that Liebrand (U.S. Patent No. 3,738,845)
teaches “a process for the preparation of clear sorbitol hard candies
confections which prevents the crystallization of sorbitol by addition of an
organic acid, prior to the completion of the cooking step, which is carried
out to a temperature of at least 300°F (about 149°C)” (Spec. 2).
9. Liebrand discloses that acid can be added prior to heating or at any
point during the cooking process (col. 1, l. 59- col. 2, l. 6).
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10. Liebrand discloses that “[u]pon cooling, the resulting candies are
crystal clear and free from the objectionable opacity or cloudiness usually
encountered” (col. 2, ll. 6-8).
11. Liebrand employs a vacuum during the cooking process and
reduces the candy moisture content to less than 5 % (col. 1, ll. 50-58).
12. Liebrand teaches that preparing hard sorbitol candies according to
the described method prevents sorbitol crystallization via addition of organic
acid, such as citric acid (col. 1, ll. 40-45).
13. Aldrich discloses a process for making hard candy wherein acid
and sugar alcohol, such as sorbitol, xylitol, mannitol, maltitol and
combinations thereof, are employed in combination with an acid flavor (col.
1, ll. 45-59).
14. Aldrich teaches that candy made with malic acid has a preferable
taste to candy made with citric acid (col. 2, ll. 58-65).
15. Aldrich discloses using a vacuum prior to cooling the candy
mixture (col. 2, ll. 50-58).
16. Appellant provides an example (Example 1) of a product said to
be according to the invention (Spec. 7-8). In this Example, the product is
described as being made using 50kg of water, 25 kg of a specified maltitol
syrup, 125 kg of a specified Isomalt. The batch is mixed and heated to a
temperature of 80°C. Then, 1 kg of a specified citric acid, 1.4 kg of a
specified malic acid, and 0.2 kg of Acesulfame K are added for forming the
casing premix of the confection. The casing premix is subjected to heating
progressively in two evaporators in series up to a temperature of 138°C,
subjected to vacuum flashing, then cooling, and is subsequently filled with a
specified filling, all in a specified manner.
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17. Appellant provides an example (Example 2) of a product, which
is said to have been made as a comparison example, from substantially the
same ingredients as used in Example 1 (Spec. 8). However, the acid
addition occurs after the steps of subjecting a casing batch mix to several
heating steps, including a heating step above 145 °C (cooking) in an
evaporator, a vacuum application step, and a discharge on a cooling table
step. Subsequently, the casing is filled with a specified filling.
18. Appellant provides an Example 3 specifying how light
transmission properties for an average of six samples of outer casings of
products made according to Examples 1 and 2 are determined with an
analysis model (Spec. 8-11). The results, including standard errors, are
determined for each of the samples and presented in Table 1 as an average
for samples made in accordance with each Example at a number of
wavelengths, and with a plot provided in drawing Figure 3 (Spec. 8-11; Fig.
3).
19. Table 1 of the Specification reports that the six samples of
product casings made in accordance with Example 1 demonstrated an
average transmission of: (a) 48.43 percent at 450 nm wavelength, (b) 51.90
percent at 550 nm wavelength, and (c) 53.07 percent at 650 nm wavelength
with respective standard errors of 0.85, 0.89, and 0.94 percent (Spec. 11).
The six samples of product casings made in accordance with comparison
Example 2 demonstrate an average transmission of: (d) 45.70 percent
prepared at 450 nm wavelength, (e) 48.85 percent at 550 nm wavelength,
and (f) 50.32 percent at 650 nm wavelength with respective standard errors
of 2.11, 2.02, and 1.94 percent. (Id.).
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20. Rivier provides Examples 1 and 2 wherein a confection product
casing recipe includes 80 kg isomalt, 10 kg maltitol syrup and 10 kg water
that is heated under 60 percent vacuum until reaching a cooking temperature
of 155 °C (¶¶ 0074 and 0077). The resulting cooked mass is flavored,
colored, acidified and cooled down to 70 °C and a batch roller is charged
therewith and the mass is then subjected to a filling process (Rivier, ¶¶ 0074-
0077).
21. The Declaration under 37 C.F.R. § 1.132 by Christiana Soldani
does not present any additional experimental evidence to that presented in
the subject Specification (App. Br., Exhibit F).3
22. Christiana Soldani states, inter alia, in the Declaration under
37 C.F.R. § 1.132 that:
5. As summarized in the Examples and Figures of
the present disclosure, the addition of acidic
components of a hard candy at the beginning of the
manufacturing process, including the cooking stage,
results in a hard candy having a greater transmission
than a hard candy produced by a process wherein the
acidic components are added during the cooling stage
that follows cooking. More specifically, Figure 3 and
Table 1 of the present specification illustrate the
surprisingly high transmission that is achieved when the
acidic components of Example 1 was added during the
cooking stage, as opposed to the process of Example 2
wherein the acidic components are added during a
subsequent cooling stage. Therefore, although
Examples 1 and 2 comprise hard candies having similar
ingredients, a surprisingly high transmission is achieved
by the addition of the acidic components of a hard
candy at the beginning of the manufacturing process.

3 The Declarant refers to Rivier (EP 1 151 673 A2) as Rivier II.
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. . .

8. RivierII fails to disclose or suggest a glassy
amorphous solid having an improved transparency as
evidenced by a transmission of at least 47.8% at 450
nm; and/or at least 50.9% at 550 nm; and/or at least
52.3% at 650 nm. In fact, at no place in the disclosure
does Rivier II even recognize any glassy amorphous
solid having a specific transmission, let alone the
improved transmission of the glassy amorphous solid as
described herein above.

9. Rivier II teaches a conventional process for
producing confectionery products wherein acidic
components are added after cooking. Specifically,
Rivier II teaches that a mixture of 80 Kg of isomalt F,
10 Kg of maltitol syrup and 10 Kg of water is cooked
under 60% vacuum until reaching a cooking
temperature of 155°C. Subsequently, the resulting
cooked mass is flavoured, coloured and acidified and
cooled down at 70°C. This process will not result in a
glassy amorphous solid having an improved
transparency as evidenced by a transmission of at least
47.8% at 450 nm; and/or at least 50.9% at 550 nm;
and/or at least 52.3% at 650 nm. In fact, because Rivier
II teaches a conventional process for producing
confectionery products wherein acidic components are
added after cooking, the resulting transmission will be
less than the presently claimed transmission of at least
47.8% at 450 nm; and/or at least 50.9% at 550 nm;
and/or at least 52.3% at 650 nm. Because Rivier II
teaches that the acidic component is added after cooking
and because Rivier II does not disclose improved
transmission properties, Rivier II cannot teach the
improved transmission properties of the confectionery
product discussed herein above or disclosed in the
present application.

(App. Br., Exhibit F)
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PRINCIPLES OF LAW
On appeal to this Board, Appellant must show that the Examiner erred
in rejecting the claims. Cf. In re Kahn, 441 F.3d 977, 985-986 (Fed. Cir.
2006); see also 37 C.F.R. § 41.37(c)(1)(vii).
35 U.S.C. § 112, second paragraph, provides that “[t]he specification
shall conclude with one or more claims particularly pointing out and
distinctly claiming the subject matter which the applicant regards as his
invention.” A claim is considered indefinite if it does not reasonably apprise
those skilled in the art of its scope. Amgen, Inc. v. Chugai Pharm. Co., Ltd.,
927 F.2d 1200, 1217 (Fed. Cir. 1991); see also, In re Venezia, 530 F.2d 956,
958 (CCPA 1976) (relevant inquiry under § 112, second paragraph, is
whether the claims delineate to a skilled artisan the bounds of the invention).
In proceedings before it, the Patent and Trademark Office (PTO)
applies to the verbiage of the claims before it the broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in the appellant's specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
However, see, e.g., Ex parte Miyazaki, 89 USPQ2d 1207, 1211-1212
(BPAI 2008) (“The USPTO is justified in using a lower threshold showing
of ambiguity to support a finding of indefiniteness under 35 U.S.C. § 112,
second paragraph, because the applicant has an opportunity and a duty to
amend the claims during prosecution to more clearly and precisely define the
metes and bounds of the claimed invention and to more clearly and precisely
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put the public on notice of the scope of the patent.”). In Miyazaki, an
expanded panel of the Board went on to state:
The Federal Circuit has, however, noted that a different
standard for indefiniteness may be appropriate during
prosecution of patent claims. See Exxon Research and
Engineering Co. v. U.S., 265 F.3d 1371, 1384 (Fed. Cir.
2001) (“If this case were before an examiner, the examiner
might well be justified in demanding that the applicant
more clearly define UL, and thereby remove any degree of
ambiguity. However, we are faced with an issued patent
that enjoys a presumption of validity.”) Accordingly, we
adopt this lower threshold standard of ambiguity for
indefiniteness for claims during prosecution in keeping
with the USPTO's broadest reasonable interpretation
standard for claim construction.

Id. at 1212.

"Section 103 forbids issuance of a patent when 'the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,
1734 (2007).
In this regard, “analysis [of whether the subject matter of a claim is
obvious] need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”
KSR, 127 S.Ct. at 1741.
In re Gurley, 27 F.3d 551, 552-53 (Fed. Cir. 1994), holds that “[a]
reference may be said to teach away when a person of ordinary skill, upon
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reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant.”
Moreover, it is well settled that when the prior art discloses a range
that overlaps or touches on a claimed range, the claimed range is rendered
prima facie obvious. See In re Harris, 409 F.3d 1339, 1343-44 (Fed. Cir.
2005); In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003); In re Geisler,
116 F.3d 1465, 1468-69 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575,
1577-78 (Fed. Cir. 1990); In re Malagari, 499 F.2d 1297, 1302-03 (CCPA
1974).

ANALYSIS
Rejection under 35 U.S.C. § 112, second paragraph
Appellant maintains that “[s]ince Claim 1 recites, in part, “a cooking
step” and Claim 3, which is dependent on Claim 1, recites, in part, “the
cooking step,” Appellants respectfully submit that there is proper antecedent
basis for “the cooking step” in Claim 3” (App. Br. 10-11).
Rejected dependent claim 3 requires a method according to claim 1,
which method “further comprises applying a vacuum to an evaporator
during the cooking step . . . . ”
The Examiner correctly notes, however, that the “a cooking step” of
claim 1 is part of a recitation describing a comparison glassy amorphous
solid based on a manner of preparation thereof (“acidic component has been
added after a cooking step”) rather than a part of the method of preparing a
glassy amorphous solid in accordance with claim 1 (Ans. 4). In the method
of claim 1, an acid component is added to a liquid starting material prior to
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evaporating water therefrom without mentioning a cooking step (cl. 1, steps i
and ii).
As presently recited, “the cooking step” limitation of claim 3 does not
have a reasonable explicit antecedent basis in claim 1 that renders the claim
3 restriction to the claim 1 method reasonably definite. If the “a cooking
step” of the comparison product described in step iii of claim 1 is used as an
antecedent for the claim 3 recitation, as Appellant argues, it is not clear how
claim 3 would further limit the scope of the claim 1 method to include
applying a vacuum to an evaporator, as recited therein.
The evaporation step ii of claim 1 provides that water is removed from
the liquid starting material containing at least one acid component. When
step ii is read in light of the Specification, this step could be interpreted to
imply “a cooking step” (Spec. 3, ll. 13-22; 5, l. 28 -6, l. 2) that would be
consistent with the claim 3 recitation. However, this latter claim
interpretation option for an implicit antecedent basis for “the cooking step”
of claim 3 being provided in step ii of claim 1 would present an
inconsistency with Appellant’s arguments and with the otherwise expressly
provided for “a cooking step” of a comparison product as recited in claim 1
(cl. 1, step iii).
On this record, the Examiner has presented a prima facie case as to
how pending claim 3 runs afoul of the definiteness requirements of the
second paragraph of 35 U.S.C. § 112. Appellant’s argument appears to
bolster rather than overcome the Examiner’s basis for this rejection.

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Rejections under 35 U.S.C. § 103
Concerning the Examiner’s obviousness rejection over Rivier, it is
manifest that Rivier does not limit the disclosed method to the exemplified
embodiments (FF 2-7). In this regard, Rivier provides for introducing an
acid component into a hard candy composition and evaporating water during
cooking at temperatures (130-150°C) that encompass or overlap the claimed
evaporation temperature range of less than or equal to 145°C, as specified in
representative claim 1 (FF 2-5). Moreover, Rivier employs a vacuum during
the evaporation of water and a cooling step (FF 2). Appellant acknowledges
that such processing conditions for making hard candy are conventional (FF
1).
While Rivier may not expressly describe adding an acidic component
of the candy composition to the liquid starting material prior to evaporation
of water (cooking), Rivier clearly teaches that an acid component can be
added to the candy composition without limiting the manner or timing of the
acid addition (FF 4). Furthermore, Rivier teaches or suggests that heat
resistant functional additives can be added at the cooking stage (FF 3).
On this record, it is readily apparent that one of ordinary skill in the
art would have readily determined suitable options in the sequence of steps
in making Rivier’s candy casing wherein the disclosed acid addition taught
by Rivier could take place, including at a point during the formulation of the
aqueous mixture and prior to evaporating water from the candy casing
aqueous mixture (FF 1-4). This is particularly true here given that there are
only several steps required in making the candy casing of Rivier, that is,
slurry preparation (aqueous mixture formulation), cooking (heating and
evaporation), and cooling, at which the acid addition can take place.
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Consequently, we agree with the Examiner’s conclusion that the claimed
process, including the evaporation temperature and the acid component
addition during the slurry (liquid starting material) formation stage, would
have been a readily recognized option that would have been obvious to one
of ordinary skill in the art (Ans. 3 and 4).
As for the argued absence of significant hydrolysis of sugar alcohol
during the evaporation (cooking) step and the asserted improved product
transparency, the Rivier process would be reasonably expected to be
attended by substantially the same results obtained by Appellant given the
commonalities between the materials and processing conditions disclosed by
Rivier and the claim 1 requirements (FF 1-7: cl. 1).
Moreover, we recognize that Appellant’s proffered evidence shows
that a somewhat lower average light transmission occurred at 450 nm, 550
nm, and 650 nm wavelengths for the Comparison Example 2, wherein acids
were added after cooking, as compared to the alleged inventive Example 1
(FF16-18). In Specification Example 1, several acid components were
added at the beginning of several heating/cooking stages (FF 16).
However, neither the Specification nor the Christiana Soldani
Declaration under 37 C.F.R. § 1.132 specifically addresses, much less
adequately explains, how comparing light transmission results from a single
Example according to the claimed invention with those from the
comparative Example demonstrates unexpected results, much less
unexpected results coextensive in scope with the claimed process. In this
regard, Appellant refers to the Specification results as improved, not
unexpected (App. Br. 14). Nor has Appellant adequately demonstrated how
the single comparative exemplified product made according to the
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Specification Example 2 recipe and method would accurately and
necessarily reflect the relevant light transmission properties for the method
taught by the applied reference. This is because Rivier discloses a
confectionary product recipe (including ingredients and method) that is not
identical to the Specification comparison Example 2 recipe. This is
important given that Appellant has reported standard errors associated with
the Specification Example 2 light transmission values of about two percent
(Specification Table 1).
Accordingly, the arguments set forth in the Appeal Brief and Reply
Brief, to the extent they are premised on the Specification Evidence and
Soldani Declaration as establishing an unobvious product difference for the
claimed method based on the evidence furnished, are not persuasive.
Concerning the Examiner’s second obviousness rejection of the
appealed claims based on the combined teachings of Rivier with either of
Aldrich or Liebrand, we note that as we have found the teachings of Rivier
sufficient to render the representative claim 1subject matter obvious to one
of ordinary skill in the art for reasons set forth above, we likewise determine
that the teachings of Aldrich or Liebrand in combination with Rivier would
have led one of ordinary skill in the art to subject matter embraced by
representative claim 1.
Appellant’s arguments regarding the selection of citric acid are not
persuasive because representative claim 1 does not require use of citric acid
(App. Br. 17; cl. 1). Furthermore, both Aldrich and Liebrand disclose citric
acid addition to a hard candy, as a known option (FF12-14).
While we recognize that Liebrand employs sorbitol and a somewhat
higher cooking (evaporation) temperature of at least 300°F (about 149°C)
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than the claimed temperature of 145°C or less, we agree with the Examiner
that the addition of a non-monosaccharide sugar alcohol and the use of a
lower evaporation (cooking) temperature, such as taught by Rivier, for use in
the candy of Liebrand would have been an option well within the skill of the
artisan based on the combined teachings of the references (Ans. 4-5; FF 1, 2,
5, 8-12). We observe that Liebrand teaches that acid component addition
prior to cooking (evaporation) may be beneficial with respect to product
candy transparency when employing sorbitol (FF 8-12).
Appellant’s contention that each of the applied references is
individually deficient is not persuasive of error in the Examiner’s second
obviousness rejection (App. Br. 18). In this regard, one of ordinary skill, in
the art would have been expected to arrive at the claimed process upon
routine experimentation when using known non-monosaccharide sugar
alcohol alternatives in place of or in addition to the sorbitol (sugar alcohol)
of Liebrand in the manufacture of hard candy based on the combined
teachings of the references.

CONCLUSIONS
Appellant has not identified reversible error in the Examiner’s
rejection of claim 3 under the second paragraph of 35 U.S.C. § 112 by the
argument that there is proper antecedent basis for “the cooking step” of
claim 3 in referenced claim 1 sufficient for one of ordinary skill in the art to
understand the scope of the subject matter embraced by claim 3, when
dependent claim 3 is read in light of the Specification.
Appellant has not identified reversible error in the Examiner’s
obviousness rejection of the appealed claims over Rivier based on the
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argument and submitted copy of a Declaration under 37 C.F. R. 1.132 of
named inventor, Christiana Soldani urging that Rivier fails to teach or
suggest adding an acidic component to a liquid water-containing starting
material and evaporating the water under conditions at which significant
hydrolysis of the sugar alcohol is not caused by the added acidic component,
as set forth in representative claim 1.
Appellant has not identified reversible error in the Examiner’s
obviousness rejection of the appealed claims over Aldrich or Liebrand in
view of Rivier based on the argument that “Aldrich, Liebrand, and Rivier are
all deficient with respect to the present claims . . . ” and that, consequently, a
combination of the applied references that would have led one of ordinary
kill in the art to Appellant’s claimed subject matter would not have been
suggested (App. Br. 18-19).

ORDER
The decision of the Examiner to reject claim 3 under 35 U.S.C. § 112,
second paragraph as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicant regards as invention; to
reject claims 1, 3, 5, 6, and 8-12 under 35 U.S.C. § 103(a) as being
unpatentable over Rivier; and to reject claims 1, 3, 5, 6, and 8-12 under
35 U.S.C. § 103(a) as being unpatentable over Aldrich or Liebrand in view
of Rivier is affirmed.

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a)(1)(iv).

AFFIRMED

ls

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