Appeal No. 2002-1063 Page 8
Application No. 09/306,552
Independent claims 17, 19, 21 and 35 also stand rejected as being unpatentable
over Gies and Olsson. All of these claims also require that the containers be bottles,
and therefore the comments we made above regarding the lack of suggestion to
substitute pharmaceutical bottles for the yoghurt cups in the Gies system are applicable
here, and on that basis the rejection of these claims cannot be sustained. In addition,
also as we discussed above, we do not agree with the examiner on the basis of the
adduced evidence that “aseptic” sterilization of foodstuffs required by all of these claims
is taught by the applied prior art, or that the requirement that such be to a level
producing “at least about 12 log reduction in Clostridium botulinum” (claims 17, 21 and
35) and to a level producing “at least about a 6 log reduction in spore organisms” (claim
35), would have been obvious result effective variables to one of ordinary skill in the art.
The rejection of claims 17, 19, 21 and 35 is not sustained.
Claim 12, which depends from claim 1, has been rejected on the basis on the
basis of Gies and Olsson, taken further with Sizer, cited for teaching disinfecting a
container by using oxonia, which is called for by claim 12. Be that as it may, Sizer does
not overcome the shortcomings we found in the combination of Gies and Olsson
against claim 1, and therefore we will not sustain the rejection of claim 12.
The comments regarding aseptically sterilized foodstuffs and bottles made
above with regard to the rejection of the other independent claims also apply to claim
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