Appeal No. 2002-0195
Application No. 09/174,977
previous decision in Appeal No. 1995-3770. The method of claim 1
in Appeal No. 1996-2901 contains the same limitation regarding a
carbon dioxide flush as found in claim 30 in this appeal.
Therefore, we adopt our remarks on pages 4-6 of the decision in
Appeal 1996-2901 regarding Nakamura, i.e., that Nakamura does not
disclose or suggest gas flushing and addition of an
antioxidant/deoxygenating composition, but teaches the
disadvantages of using nitrogen or carbon dioxide sealed into the
interior of evacuated packages. Accordingly, we determine that the
examiner has not shown that Nakamura discloses or suggests all of
the limitations of claim 30 on appeal.
For the foregoing reasons, we determine that the examiner has
failed to present any factual basis for the conclusion of
obviousness. Accordingly, we cannot sustain the examiner’s
rejection of claim 30, and claims 22-29 which stand or fall with
claim 30, under 35 U.S.C. § 103(a) over Nakamura.
C. Composition Claims 31-39
Composition claim 31 recites a stable composition for
absorbing oxygen and releasing carbon dioxide in a high moisture
environment that requires five components (see the decision, pages
3-4, in Appeal No. 1995-3770). The examiner, as discussed above
with respect to claim 31, finds that Nakamura discloses overlapping
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