Appeal No. 1996-0288 Page 4
Application No. 07/873,634
The examiner's rejection under 35 U.S.C. § 112, second paragraph, is reversed.
3. Obviousness.
As we understand the examiner's position, it is that Cox describes a culture
media system as required by claim 27 with the exception of the claim requirement of an
active oxygen absorber sealed within the package for actively scavenging oxygen. The
examiner relies upon Kasugai for its disclosure of an active oxygen absorber sealed
within a culture media system. The examiner believes that it would have been obvious
to one of ordinary skill in the art to use an active oxygen absorber within the culture
media system of Cox "in order to maintain the anaerobicity of the package, i.e., to
scavenge any residual, generated or leaked oxygen or in order to generate the
anaerobic atmosphere of Cox." Examiner's Answer, page 4. We disagree.
As seen from Figure 1 of Cox and the accompanying description of the figure in
the specification, the culture media system of that reference is prepared under
anaerobic conditions. The culture media supplied to the culture media system of Cox is
also prepared under anaerobic conditions. See, e.g., column 5, lines 14-38. The first
reason given by the examiner for providing an active oxygen absorber in the sealed
package of Cox lacks factual support on this record. The examiner asserts that it would
have been obvious to provide an active oxygen absorber to "scavenge any residual,
generated or leaked oxygen" in the sealed package of Cox. However, the examiner
has not established in the first instance that the sealed package of Cox would
expectedly contain any "residual, generated or leaked oxygen." Without factual support
for the examiner's predicate in this aspect of the rejection, we hold that the examiner's
rejection is not supported by substantial evidence.
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007