Appeal No. 2002-1763 Page 4
Application No. 09/267,149
gas over the liquid product in the container. There is little connection between the process of
Perlman and the processes of the primary references. A suggestion to use an aerosol can to
dispense inert gas does not flow from the disclosure of Perlman and the Examiner provides no
other basis for finding a suggestion within the prior art as a whole. In our view, the motivation
for the examiner's stated rejection appears to come from the description of Appellant’s invention
in their specification and is based on impermissible hindsight. Such a use of Appellant’s
specification is improper. See W.L. Gore & Associates v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984); In re Rothermel, 276
F.2d 393, 396, 125 USPQ 328, 331 (CCPA 1960).
We further note that the claims are directed to a method of preserving a petroleum-based
liquid product and require displacing substantially all atmospheric oxygen from the headspace of
a container containing the petroleum-based liquid product. There is no suggestion, particularly
for the combination of Zinke with Perlman, to apply the gas displacement process to a container
of petroleum-based liquid product.
We conclude that the Examiner has failed to establish a prima facie case of obviousness
with respect to the subject matter of claims 45-51.
CONCLUSION
To summarize, the decision of the Examiner to reject claims 45-51 under 35 U.S.C. §
103(a) is reversed.
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