Appeal No. 95-1528
Application 07/952,684
own understanding of the mechanism responsible for the
enhancement of hatchability by hydrogen peroxide. Sheldon
theorizes that “a chemical alteration of the proteinaceous outer
cuticle of the egg which functions to regulate respiratory
activity and water loss across the shell and shell membranes and
which acts as a barrier preventing microbial invasion into the
egg” (Sheldon, col. 4, l. 57-65). Sheldon also suspects
“generation of elevated oxygen levels within the shell due to the
diffusion of hydrogen peroxide across the shell and shell
membranes and its ultimate decomposition to oxygen” (Sheldon,
col. 4, l. 67, to col. 5, l. 3). The mechanisms Sheldon proposes
are wholly inconsistent with the examiner’s findings.
Accordingly, we reverse the examiner’s conclusion of the
unpatentability of Claims 39-57 under 35 U.S.C. § 103 because it
is based on clearly erroneous findings with regard to Sheldon’s
teaching.
Other Issues
We are obliged to remand this case to the examiner
for (1) claim interpretation, (2) additional prior art findings,
and (3) consideration of new grounds of rejection consistent with
our decision on the appealed rejection. We especially recommend
consideration of the following matters.
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Last modified: November 3, 2007