Appeal No. 1997-3886
Application No. 08/232,460
Myers discloses the preservation of flavor and color by
inhibiting bacterial growth in produce by using noble gases
with a carrier gas (id. at page 5). Finally, the examiner
notes that appellant admits that it was well known to preserve
fruits and vegetables with argon (id., citing pages 5-11 of
the specification).4 The examiner concludes that it would
have been obvious to one of ordinary skill in the art to have
treated vegetables with an inert gas such as argon or mixtures
of argon with another noble gas (id. at pages 5-6).
Appellant argues that none of the references cited,
either alone or in combination with each other or with any
admissions made in the specification, would have rendered the
present invention obvious (Brief, page 4). Appellant argues
that none of the references discloses or suggests the binary
mixture of noble gases as required by the claims on appeal
(Brief, pages 3 and 5; Reply Brief, page 1). Appellant’s
argument is not persuasive as the cited prior art, as a whole,
reasonably would have suggested the preservation of vegetables
4It is axiomatic that admitted prior art in an appellant’s
specification may be used in determining the patentability of
a claimed invention. In re Nomiya, 509 F.2d 566, 570-571, 184
USPQ 607, 611-12 (CCPA 1975).
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