Appeal No. 2000-0890 Page 7
Application No. 08/345,215
has failed to establish his initial burden of providing reasons of unpatentability.
Accordingly, the rejection of claims 26-32 is reversed.
4. Claim 33
Claim 33 is similar to claim 26 in that the claimed package requires two
compartments, one including a water-containing compartment formed from plastic film
and a second compartment which comprises a porous flexible sheet adapted to admit a
sterilizing gas through pores in the flexible sheet for sterilizing the contents. In other
words, claim 33 requires that the claimed package be constructed of porous and non-
porous materials in order to form the two compartments. Again, the examiner has not
explained on the record how GB’144 teaches or suggests the specific package required
by claim 33. Absent such an explanation from the examiner we do not find that he has
adequately explained why claim 33 is unpatentable. The rejection of claim 33 is
reversed.
OTHER ISSUES
1. Admitted prior art
As set forth above, the examiner belatedly referred to appellant’s admission of
prior art which appears on pages 7-7(a) of the specification. Specifically, appellant
states at page 7(a) that the five-layer laminate useful in the present invention, which
includes an inner coating of an ionomer, is commercially available from a packaging
company.
Upon return of the application, appellant and the examiner should cooperate and
make of record relevant prior art which documents this admission. It may be that the
commercially available packaging material referred to by appellant in the specification
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