Appeal No. 1996-0876
Application 08/123,144
nitrogen as well as carbon dioxide as a means of retarding or preventing oxidation of said
foods,” and (ii) the use of nitrogen described in Example 4 of the patent provides some
prevention of oxidation. Paper No. 8, p. 4.
As to the prior art methods to which the examiner alludes, it is not clear to us as to
which portion of the patent he is relying on. We point out that it is not the responsibility of
this tribunal to examine the case in the first instance and to formulate a rejection based on
the references provided. Moreover, even if we assume, arguendo, which we do not, that
the examiner is referring to the teachings of Kotani [col. 1, lines 14-18] that
General methods to retard or prevent oxidation of foods are an addition of
antioxidant or a substitution of air in pouches with inactive gases, for instance
nitrogen or carbon dioxide or an addition of oxygen absorbing agents into pouches.
As for nuts, an addition of antioxidants is not so effective. ... [emphases added]
we do not find that these teachings would have suggested the claimed method to persons
having ordinary skill in this art. That is, the quoted passage describes the use of nitrogen
packets as an alternative to an antioxidant, and makes no mention of prior treatment with a
vacuum. Absent a fact-based explanation from the examiner, we do not find that from
these teachings of Kotani it would have been obvious to one of ordinary skill in the art to
treat a food product (1) with an antioxidant (since Kotani expressly states that
antioxidants are not so effective), and (2) with a vacuum, followed by an increase in
pressure to one atmosphere and replacement of the air in the pressure chamber with
nitrogen.
With respect to the examiner’s second point, we acknowledge that Kotani discloses
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