Appeal No. 1996-0876
Application 08/123,144
“... to have coated said nuts via soaking same as an art recognized alternative manner for
coating same [Id., p. 3]... to have employed ... [a] vacuum when mixing said nuts and
coating material to provide more extensive coating of said nuts [Id.] ... to have employed
an oxygen-free or low oxygen environment during processing of foods (e.g. mixing nuts
with coating) to prevent oxidation and, therefore, increase the shelf-life of same” [Id., p. 4].
We find the examiner’s arguments unpersuasive.
It is well established that the examiner has the initial burden under § 103 to
establish a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-72,
223 USPQ 785, 787-88 (Fed. Cir. 1984). It is the examiner’s responsibility to show that
some objective teaching or suggestion in the applied prior art, or knowledge generally
available [in the art] would have led one of ordinary skill in the art to combine the
references to arrive at the claimed invention. Pro-Mold & Tool Co. v. Great Lakes
Plastics, Inc., 745 F.3d 1568, 1573, 37 USPQ2d 1626, 1629 (Fed. Cir. 1996). Here,
we find that the examiner has failed to provide any reasons based on the applied prior art,
or otherwise, as to why it would have been obvious to one of ordinary skill in the art to
subject an antioxidant-coated food product to vacuum treatment in a pressure vessel, to
return the pressure in said pressure vessel to one atmosphere, and to inject nitrogen gas
into said pressure vessel to replace the air. The examiner urges that such suggestions
come from the Kotani disclosure that (i) “the prior art treatment of foods, in general, with
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