Appeal No. 1997-3886
Application No. 08/232,460
by use of 100% argon or mixtures of argon and equivalent other
noble gases.
Appellant has not contested the examiner’s use of the
admitted prior art in the specification to establish that it
was well known in the prior art to preserve vegetables with an
argon atmosphere, i.e., 100% argon (see the Brief, page 4, and
the Office action dated July 9, 1996, Paper No. 28). The
process of claim 74 on appeal includes subjecting vegetables
to an atmosphere of “about 99% volume of gaseous argon.” Thus
the prior art discloses a specific embodiment that is so
similar to the claimed embodiment that prima facie one of
ordinary skill in the art would have expected them to possess
similar properties. See Titanium Metals Corp. of Am. v.
Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
The binary mixture of noble gases recited in claim 74 on
appeal would also have been suggested by the teachings of the
cited prior art to use noble gases in preservation of
foodstuffs such as vegetables. For instance, French ‘669
teaches the use of a rare gas, preferably argon, as a
protective atmosphere superior to nitrogen (page 3). This
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