Appeal 2007-1896
Application 10/223,864
pot with vegetable (FF 5). One does not cook what is already cooked, one
reheats. Moreover, it was known in the art that cooked oysters do not freeze
well (FF 8).
Appellants point out that the maximum temperature of the claims
(75°C for claim 1 and 70°C for claim 10) is lower than that of Tanigawa.
But this is not a meaningful distinction given that the temperature range
exemplified by Tanigawa overlaps or touches the claimed range. Tanigawa
heats to destroy pathogens and dehydrate the oyster (FF 2). Tanigawa
provides some guidelines on heating temperatures and times sufficient to
accomplish the required heating further noting that temperatures outside
those ranges may need adjusting (FF 4). Those of ordinary skill in the art
would have had a reasonable expectation of success of accomplishing the
desired pathogen destruction and dehydration at the claimed ranges.
With regard to the second issue, we determine that Tanigawa
describes a process of heating and freezing raw and unseasoned oysters as
required by claims 1 and 10. As explained above, the product of Tanigawa’s
process is a raw oyster. What is frozen is an unseasoned oyster, only after
defrosting the oyster is it seasoned (FF 2). Claims 1 and 10 do not exclude a
further method of seasoning the oyster at some point in time after defrosting.
With regard to the third issue, we determine that Appellants have not
overcome the Examiner’s finding of a reason to combine the teachings of the
references. “One of the ways in which a patent's subject matter can be
proved obvious is by noting that there existed at the time of invention a
known problem for which there was an obvious solution encompassed by the
patent's claims.” KSR, 127 S. Ct. at 1742, 82 USPQ2d at 1397). The
references relied upon by the Examiner evidence a problem known in the art
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