Ex Parte SPENCER - Page 5
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Board of Patent Appeals and Interferences > 2001 > Ex Parte SPENCER - Page 5
Appeal No. 1997-0296
Application No. 08/378,086
art method of blanketing chocolate with nitrogen or other inert
gases. However, our review of the prior art cited by the
examiner leads to the conclusion that the examiner correctly
determined that it would have been obvious for one of ordinary
skill in the art to inhibit the oxidation of chocolate or its
precursor by injecting a noble gas into the chocolate material.
In our view, one of ordinary skill in the art would have
possessed the requisite reasonable expectation of success in
doing so. In re O'Farrell, 853 F.2d 894, 903, 7 USPQ2d 1673,
1681 (Fed. Cir. 1988).
French ‘669 expressly discloses the injection of rare, or
noble, gases, preferably argon, into materials, such as vitamin
C, adrenaline, vegetable and animal oils, as means for inhibiting
the oxidation of the material. Also, French ‘669 specifically1
teaches that injecting, or sparging, with noble gases is more
effective than the prior art use of nitrogen. Consequently,
since it was admittedly known in the art to use inert gases to
inhibit oxidation of chocolate, and Bagdigian evidences that it
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