Appeal No. 1997-1059
Application No. 08/305,733
oxygen in the head space” (substitute appeal brief, page 5).
In comparing head space volumes to the corresponding degrees
of saturation set forth in the table on page 3 of the April 7,
1995 declaration, we find that a head space volume of oxygen
of about 2% corresponds to a degree of saturation of about 75%
or greater. It follows then that the prior art method, which
the appellants characterize as yielding a head space volume of
“about 2-10% by volume of oxygen,” would have degrees of
saturation that are comparable to those shown for similar head
space volumes in the April 7th declaration. Moreover,
appealed claim 53 reads on not only saturating the coffee to
50% by volume but also, as an alternative, saturating the
closed space containing the coffee to 50% by volume. We
therefore do not subscribe to the appellants’ allegation that
the “claimed saturation methodology” is distinct from “mere
physical blanketing” (id.).
With respect to the appellants’ arguments based on
unexpected results, the evidence relied upon is not germane to
the appealed claims. Specifically, the August 12, 1994
declaration attempts to show the difference in effect between
“blanketing” and “saturation...by means of multiple needle
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