Appeal No. 2002-1763 Page 3
Application No. 09/267,149
The Examiner bears the initial burden of presenting a prima facie case of unpatentability.
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). To establish a
prima facie case of obviousness, the Examiner must show some objective teaching in the prior
art or otherwise provide a basis to believe that knowledge generally available to those of ordinary
skill in the art would have lead those artisans to make the specific combination that was made by
the applicant. In re Dance, 160 F.3d 1339, 1343, 48 USPQ2d 1635, 1637 (Fed. Cir. 1998);
In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In the present case,
such evidence is lacking.
The rejections are based on the modification of the processes of Marano and Zinko.
Marano and Zinko describe processes of displacing ambient air in the headspace of a container
with a gaseous protective blanket of inert gas. As acknowledged by the Examiner, neither
Marano nor Zinko describe using an aerosol can to dispense the inert gas. Therefore, the
Examiner turns to Perlman. According to the Examiner it would have been obvious to use the
aerosol can as taught by Perlman in the process of Marano or Zinko for dispensing the inert gas
required by Marano and Zinko.
The problem is that the Examiner fails to provide a plausible reason or motivation to
make the combination. Perlman employs an aerosol can, but uses the can to dispense a liquid
solution into a receptacle. We agree with Appellant that the focus of Perlman is on maintaining
the sterility of the liquid that is dispensed (Brief at 10). The primary references are directed to
delivering inert gas to the headspace of a container to displace air and provide a blanket of inert
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