Appeal No. 97-2502
Application 08/358,353
follows that the rejection of these claims is reversed for the
reasons discussed above.
As to the product claims, we find that representative claim
31 is directed to a sterile, degassed milk pap which comprises
between 50% and 85% milk and between 5% and 10% swollen cereal
product. Here, we concur with the examiner that the product
described in claim 31 would have been obvious over the applied
prior art. We direct attention to the Stevens patent which
discloses a sterile milk pap comprising milk and rice. The
composition described by Stevens differs from the composition
described in claim 31 in at least two significant aspects- (1)
the presence of oxygen, and (2) the amounts of milk and cereal
product required.
As to the oxygen content, i.e., degassing, such processing
does not alter the food product per se, but rather it merely
“avoid[s] oxidation of the product.” Specification, p. 2, lines
37-39. Moreover, the prior art of record indicates that removal
of oxygen from a food product; e.g., vacuum packaging, to avoid
oxidation of that product was conventional in the art at the time
the application was filed. So conventional, in fact, that3
3At the oral hearing held February 4, 1998, counsel did not
disagree that at the time of the present invention, the degassing
of food products was known and conventional in the art.
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