Appeal No. 1997-0296
Application No. 08/378,086
was known in the art to prevent oxidation of foods such as
coffee, roasted nuts, etc., by surrounding the food with inert
gases such as argon and neon, we find the conclusion inescapable
that it would have been obvious for one of ordinary skill in the
art to prevent the oxidation of chocolate and its precursors by
injecting noble gases therein. Furthermore, since page 11 of
appellant’s specification defines a “precursor” of chocolate as
“any natural product such as cacao [sic, cocoa] beans or raw
cocoa which may be used as a source of chocolate” (lines 23-25),
the appealed claims encompass the method of sparging cocoa beans
or raw cocoa with one of the recited noble gases.
Appellant relies upon a rule 132 declaration of the inventor
as evidence of unexpected results. However, like the examiner,
we find that the declaration evidence is not of sufficient
probative value to outweigh the evidence of obviousness
represented by the applied art. In particular, we agree with the
examiner that declaration is substantially short on the
particulars of the testing parameters for the reported results.
In the words of the examiner, “it has not been made clear from
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