Appeal No. 2002-1063 Page 7
Application No. 09/306,552
(Answer, page 5). We do not agree. While the Gies containers are sterilized, the claim
requires that the containers be “aseptically” disinfected, that is, sterilized to the extent
and in the environment required by the FDA standards, and such is not taught in this
reference. In addition, there is no suggestion in Gies that spore organisms be reduced
during the sterilization process, much less that it be “a 6 log” reduction. This being the
case, we cannot subscribe to the examiner’s position on this issue.
With regard to the requirement that the bottles be filled with aseptically sterilized
foodstuffs, we agree with the examiner that the appellant’s specification suggests that
this technique is known in the art (page 3). However, Gies states that in the field of his
invention “[t]he filling and sealing are done under substantially sterile conditions”
(column 1, lines 16 and 17; emphasis added), which would mitigate against
modification to aseptic disinfection, considering that this requires the operation to be
performed in a sterile environment to FDA standards.
Because of the deficiencies explained above, it is our opinion that the combined
teachings of Gies and Olsson do not establish a prima facie case of obviousness with
regard to the subject matter recited in independent claim 1, and the rejection cannot be
sustained. It follows that we also will not sustain the like rejection of claims 2-11 and
16, which depend from claim 1.
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