Appeal No. 1996-2598
Application No. 08/220,212
invention does not exclude the presence of antimicrobials per se, only those which negatively impact the
viability of L. monocytogenes. Therefore, the examiner’s position is not well taken.
The examiner relies on Cassiday for its disclosure regarding optimization of antibiotics
concentration and addition of iron to solid media (answer, pages 4-5). The examiner does not point
out, and we do not find, where Cassiday addresses the ingredients excluded from claims 5 and 22.
Indeed, none of the references positively exclude ingredients excluded by the language of the claimed
invention. Thus, we will not sustain the examiner’s rejection of claims 5-10 and 22 over Cox taken
with Blanco, Lee and Cassiday. Having concluded that the examiner has failed to establish a prima
facie case of obviousness over Cox, Blanco, Lee and Cassiday, we do not reach the rebuttal evidence
discussed at page 6 of appellants’ reply brief.
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