Page 6
originally filed disclosure had possession of the concepts set forth in the claimed
subject matter. Accordingly, we reverse the rejection of the examiner.
The Rejection under 35 U.S.C. § 103
“[T]he examiner bears the initial burden, on review of the prior art or on any
other ground, of presenting a prima facie case of unpatentability,” whether on the
grounds of anticipation or obviousness. See In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
On the record before us, the examiner relies upon a combination of five
references to reject the claimed subject matter and establish a prima facie case of
obviousness. The basic premise of the examiner’s rejection is that it would have been
obvious to one of ordinary skill in the art to saturate the food system with gas as
taught by Bagdigian, use any inert gas as taught by Doebbler, and inject the gas as
taught by Seebeck in the process of Fath or Powrie because the saturation of enzyme
containing systems with all inert gas containing mixtures is conventional in the food art.
See Answer, page 6. We disagree. We find that Bagdigian is directed to certain types
of foods such as coffee, popcorn, potato chips, peanut butter, and foods which have
a tendency to deteriorate in packages. See column 1, lines 22-25 and column 2, lines
20-23. There is no mention in Bagdigian of either fruits or fruit juices. Nor can we
conclude that packaging food in a “chamber saturated with the desired gas,” column
1, lines 40-41, would necessarily result in meeting the requirement of the claimed
subject matter that the fruit and fruit juice be saturated “substantially throughout.”
Accordingly, we determine that there is no suggestion or teaching in Bagdigian to
utilize inert gases in a chamber for the purpose of saturating fruit or fruit juice.
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