Appeal No. 1996-0288 Page 2
Application No. 07/873,634
Claim 27 is representative of the subject matter on appeal and reads as follows:
27. A culture media system comprising: at least one culture media container,
containing a material consisting essentially of non-prereduced culture media, said
culture media being subject to degradation by exposure to oxygen, moisture loss and
syneresis; a package made of material at least substantially impermeable to oxygen
and moisture enclosing said container; means for sealing said package; and an active
oxygen absorber sealed within said package for actively scavenging oxygen that
permeates through said package and residual oxygen contained in said media, to
prevent degradation of said media such that said media has an extended shelf life.
The references relied upon by the examiner are2:
Cox 4,262,091 Apr. 14, 1981
Kasugai 4,605,617 Aug. 12, 1986
Claims 27, 29, 30, 11 through 13, 32 through 34, 38, and 39 stand rejected
under 35 U.S.C. § 103. Claims 27, 29, 30, 11 through 13, 32 through 34, 38, and 39
stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. As
evidence of obviousness, the examiner relies upon Cox and Kasugai. We reverse.
Discussion
1. Claim construction.
There is one phrase in claim 27 which needs to be construed before determining
the patentability of the claims on appeal, i.e., "non-prereduced culture media." This
phrase does not appear to have been part of the original disclosure of this application.
Rather, it was added to claim 27 for the first time in the amendment filed July 29, 1993
2 The examiner also cites two other references in the Examiner's Answer in responding to
appellants' arguments on appeal. See page 6 of the Examiner's Answer. The references are identified as
Nakamura and Garner. However, the examiner did not apply the teachings of these references in
rejecting the claims on appeal. As stated in In re Hoch, 428 F.2d 1341, 1342 n. 3, 166 USPQ 406, 407 n.
3 (CCPA 1970), "[w]here a reference is relied on to support a rejection, whether or not in a 'minor
capacity,' there would appear to be no excuse for not positively including the reference in the statement of
the rejection." Accordingly, we have not considered Nakamura and Garner in deciding the issues raised in
this appeal.
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