Appeal No. 1996-2901
Application No. 08/072,879
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
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