Ex parte Cullen et al.

Board of Patent Appeals and Interferences

Sep 28, 2000

08072879 (B.P.A.I. Sep. 28, 2000)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of
the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte JOHN S. CULLEN
and GEORGE E. McKEDY
__________
Appeal No. 1996-2901
Application 08/072,879
__________
ON BRIEF
__________
Before JOHN D. SMITH, PAK, and WALTZ, Administrative Patent
Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the
examiner’s final rejection of claims 1 through 20, which are
the only claims remaining in this application.
Appeal No. 1996-2901
Application No. 08/072,879
2
According to appellants, the invention is directed to a
method of removing oxygen from a container having a product
and a high moisture environment where oxygen was previously
flushed out of the container (Brief, page 1). Claim 1 is
illustrative of the subject matter on appeal and a copy of
this claim is attached as an Appendix to this decision.
The examiner has relied upon the following references as
evidence of obviousness:
Gammill et al. (Gammill) 2,819,491 Jan. 14,
1958
Nakamura et al. (Nakamura) 4,384,972 May 24,
1983
Claim 1 stands rejected under the second paragraph of
35 U.S.C. § 112, as indefinite (Answer, page 3). Claims 1
through 20 stand rejected under 35 U.S.C. § 103 as
unpatentable over Nakamura in view of Gammill (id.). We
reverse both of the examiner’s rejections for reasons which
follow.
OPINION
A. The Rejection under § 112, ¶2
The examiner states that “it is not clear how the
moisture is ‘supplied’ to the O -sorber and CO -generator since2 2
Appeal No. 1996-2901
Application No. 08/072,879
3
‘supplied’ indicates that means are employed to actively
supply the moisture.” (Answer, page 3).
Appellants note that claim 1 does not contain the word
“supplied.” (Brief, page 4). Appellants submit that the word
“supplying” is recited in the last clause of claim 1 but that
this word does not necessarily imply that there must be a
means employed to actively supply the moisture (Brief, pages
4-5).
“The legal standard for definiteness is whether a claim
reasonably apprises those of skill in the art of its scope.”
In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ2d 1754, 1759
(Fed. Cir. 1994). The initial burden of presenting a prima
facie case of unpatentability, on review of the art or on any
other ground, rests with the examiner. In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
On the record before us, the examiner has failed to meet
this initial burden. The examiner has not presented any
convincing evidence or reasoning as to why “supplied [sic,
supplying]” indicates that means are employed to “actively
supply” the moisture or why one of ordinary skill in the art
would not have been apprised as to the scope of “supplying.”
Appeal No. 1996-2901
Application No. 08/072,879
4
The latter question is especially pertinent in view of the
examiner’s determination, as discussed in the Answer (page 8),
that the dry water-attracting component of Nakamura inherently
stabilizes the composition against premature oxygen absorption
and carbon
dioxide generation and thus “supplies” moisture. Accordingly,
the rejection of claim 1 under the second paragraph of 35
U.S.C.
§ 112 cannot be sustained.
B. The Rejection under § 103
The method of claim 1 on appeal specifically recites the
step of “flushing the container with carbon dioxide to remove
other gases from said container” (see claim 1). Appellants
argue that “in Nakamura the carbon dioxide is only generated
in situ after the combined oxygen absorber and carbon dioxide
generator has been placed into the container.” (Brief, page
8). Appellants also argue that Nakamura “teaches away” from
using a carbon dioxide flush (id. at pages 9, 14 and 17).
The examiner admits that “[t]he independent claims differ
from the reference [Nakamura] in that ... carbon dioxide
Appeal No. 1996-2901
Application No. 08/072,879
5
flushing be in addition to the antioxidant.” (Answer, page
4). However, the examiner concludes that it would have been
obvious “to substitute carbon dioxide for nitrogen in
Nakamura’s process because Nakamura teaches the art recognized
equivalence of carbon dioxide and nitrogen for package
flushing.” (Id. at page 5). In response to appellants’
argument, the examiner finds that Nakamura, col. 8, ll. 3-6,
“explicitly states that the carbon dioxide gas was substituted
for the absorbed oxygen” and that Nakamura teaches gas
flushing of a food package with carbon dioxide is conventional
alone or with the incorporation of deoxygenation agents
(Answer, paragraph bridging pages 10-11, pages 11 and 12,
citing Nakamura, col. 1, ll. 16-21 and 22-26). We do not
agree with the examiner’s underlying findings and conclusion
of obviousness regarding the reference evidence of Nakamura.
Nakamura does not disclose or suggest gas flushing and
addition of an antioxidant/deoxygenating composition but
merely discloses that each of these steps is known in the art
(col. 1, ll. 16-21). Furthermore, Nakamura teaches the
disadvantages of using nitrogen or carbon dioxide sealed into
the interior of evacuated packages (col. 1, ll. 22-37).
Appeal No. 1996-2901
Application No. 08/072,879
6
Nakamura also teaches the disadvantages of other gas
substitution methods at col. 1, l. 58-col. 2, l. 16.
We also note that the examiner has misconstrued the
disclosure of Nakamura at col. 8, ll. 3-6, as teaching the
beneficial results of carbon dioxide flushing when Nakamura is
referring to the in situ generation of carbon dioxide to
achieve these results, not gas flushing with carbon dioxide
(see all of Example 1 and also col. 6, ll. 57-61).
Although appellants and Nakamura admit that gas flushing
a container with carbon dioxide is well known per se (Brief,
page 12; Nakamura as cited above), the examiner has not cited
any disclosure or teaching in Nakamura suggesting the
combination of carbon dioxide gas flushing with the foodstuff
freshening agent composition of Nakamura. We agree with
appellants that Nakamura teaches the disadvantages of carbon
dioxide gas flushing (col. 1-col. 2 as discussed above).
Furthermore, Nakamura discloses the poor results achieved with
gas packaging for 100% nitrogen gas, blank (air holding), and
various amounts of carbon dioxide (see Table 4, col. 7, ll.
52-56; Table 6, col. 9, ll. 19-25; Table 8, col. 10, ll. 63-
66; Table 10; and Table 12). Appellants disclose that the
Appeal No. 1996-2901
Application No. 08/072,879
7
gases in their container are flushed out with a gas containing
carbon dioxide to the extent that the carbon dioxide content
of the container is at least 20% with the remaining atmosphere
containing less than about 17% oxygen (specification, page 5,
ll. 8-13; see claims 18-20 on appeal). Nakamura specifically
discloses that a container with an atmosphere of 80% nitrogen
and 20% carbon dioxide gave extremely poor results (see Table
12, last two entries). See In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1132 (Fed. Cir. 1994).
For the foregoing reasons, we find no factual basis for
the examiner’s conclusion of obviousness and, in fact,
determine that Nakamura teaches away from using carbon dioxide
gas flushing of the container. Gammill has been cited by the
examiner to show the use of silica/silica gel as a desiccant
equivalent to the activated alumina/carbon of Nakamura
(Answer, pages 5-6). Therefore, Gammill does not remedy the
deficiencies noted above in the reference evidence to
Nakamura. Accordingly, we determine that the examiner has not
established a prima facie case of obviousness in view of the
reference evidence and we reverse the rejection of the claims
Appeal No. 1996-2901
Application No. 08/072,879
8
on appeal under 35 U.S.C. § 103 over Nakamura in view of
Gammill.
C. Summary
The rejection of claim 1 under the second paragraph of 35
U.S.C. § 112 is reversed. The rejection of claims 1-20 under
35 U.S.C. § 103 as unpatentable over Nakamura in view of
Gammill is reversed.
Appeal No. 1996-2901
Application No. 08/072,879
9
The decision of the examiner is reversed.
REVERSED
John D. Smith )
Administrative Patent Judge )
)
)
)
Chung K. Pak ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Thomas A. Waltz )
Administrative Patent Judge )
TAW:tdl
Appeal No. 1996-2901
Application No. 08/072,879
10
Joseph P. Gastel
722 Ellicott Square Bldg.
Buffalo, NY 14203-2507
Appeal No. 1996-2901
Application No. 08/072,879
1
APPENDIX
1. A method of removing oxygen from a container having a
product and a high moisture environment and wherein oxygen was
previously flushed out of said container and replaced by a gas
containing carbon dioxide and wherein some oxygen may have
remained and into which additional oxygen may have entered
comprising the steps of providing a container, placing a
product which produces a high moisture environment into said
container, flushing the container with carbon dioxide to
remove other gases from said container, sealing said
container, and inserting into said container which has a high
moisture environment after said flushing step and before said
sealing step a mixture of an oxygen-absorbing component for
absorbing oxygen from said container, a carbon dioxide
generating component for generating carbon dioxide in said
container, an acidifying component for activating said carbon
dioxide generating component, and a dry water-attracting
component for stabilizing the mixture against premature oxygen
absorption and premature carbon dioxide generation before the
mixture has been placed into said high moisture environment in
said container and thereafter attracting moisture from the
high moisture environment and supplying said moisture to said
oxygen-absorbing component and said carbon dioxide generating
component to thereby activate said oxygen-absorbing component
to absorb said oxygen and also activate said acidifying
component to combine with said carbon dioxide generating
component to cause it to generate carbon dioxide.