
    56 F. (2d) 888
    In re Edward J. Betzbach and John H. Bruninga
    (No. 2906)
    United States Court of Customs and Patent Appeals,
    April 4, 1932
    
      John H. Bruninffa. (Chas. B. Riordon of counsel) for appellants.
    
      T. A. Hostetler (Howard B. Miller of counsel) for the Commissioner of Patents.
    
      [Oral argument March 15,. 1932, by Mr. C. Russell Riordon and Mr. Miller]
    Before Graham, Presiding Judge, and Bland, Hatfield, Garrett, and Lenkoot, Associate Judges
   Hatfield, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the primary examiner rejecting all of the claims in appellants’ application for a patent for an alleged invention relating to a process for making frozen confections, particularly chocolate-covered ice-cream bars.

Claims 2,16, 28, and 38 are illustrative. They read:

2. In the art of making frozen confections, the process comprising flowing semifrozen ice cream into a candy shell and chilling the filled shell so as to harden the ice cream therein.
16. In the art of making frozen confections, the process comprising, filling a candy shell with layers of semifrozen ice cream and chilling the- filled shell so as to harden the ice cream therein.
2S. In the art of making frozen confections, the process comprising, placing a candy shell in an envelope, filling the shell with semifrozen ice cream, and chilling the filled shell in the envelope so as to harden the ice cream therein.
3S. In the art of making frozen confections, the process comprising, placing a candy shell in a lined box, filling the shell with semifrozen ice cream, and chilling the filled shell in the box so as to harden the ice cream therein.

The references are:

Bosenberger, 502864, August 8, 1893.
Cuseaden et al., 682243, September 10, 1901.
Boyd, 113S929, May 11, 1915.
Boyd, 1200705, October 10, 1916.
Bausman, 1276006, August 20, 1918.
Dalton, 1313793, August 19, 1919.
Nelson, 1404539, January, 24, 1922.
Brigham, 1417446, May 23, 1922.
Gereke, 1437512, December 5, 1922.
Harlan, 1475579', November 27, 1923.

The claimed process is sufficiently defined in the quoted claims.

The patents to Rosenberger, Bausman, and Boyd disclose methods of making candy by first forming a candy shell, filling it with a plastic candy cream, and then sealing it. The patent to Ba.11am3.r1 and the Boyd patent, 2STo. 1138929, disclose the additional step of cooling the shells and the cream centers before sealing.

The patent to Dalton disclosed the method of filling cartons with semifrozen ice cream and thereafter chilling it until hardened.

The patent to Nelson shows that it was old to make a confection by covering ice cream with a chocolate coating.

In view of those patents, the board held that the process defined in claims 1, 2, 3, 8, 10, and 12 was clearly suggested by the references and did not involve invention.

Claims 16, 18, and 19 include the additional feature of depositing the ice cream in layers. However, as the patents to Dalton and Cuscaden et al. disclosed it to be old to mold bricks composed of different-flavored ice creams, the board held these claims to be unpatentable.

Claims 28, 32, and 35 include the additional feature of placing the candy shell in an envelope before filling it with semifrozen ice cream. This feature being old, as disclosed in the patents to Harlem and Brigham, these claims were held to be devoid of invention.

Claims 38 and 41 include the additional feature of placing the candy shell in a lined box before filling it with ice cream. In view of the fact that the patent to Gereke showed it to be old to bake plastic dough in a shell of- cardboard having a lining of parchment, or other suitable material, these claims were held to be unpatentable in view of the other references of record.

It is contended by counsel for appellants that the involved process of producing candy-coated ice-cream bars is new; that improved results have been secured by it; and that, therefore, appellants are entitled to a patent.

We are unable to concur in the views expressed by counsel for appellants.

Each step in the alleged novel process is shown by the references to be old. Furthermore, the involved process and its application to the production of candy-coated ice-cream bars is plainly suggested by the references. Accordingly, we are of opinion that the tribunals of the Patent Office reached the right conclusion, and the decision of the Board oi Appeals is affirmed.  