Appeal No. 2002-0195
Application No. 09/174,977
B. The Sealed Container Claim 30
Appealed claim 30 is written in a Jepson-type format and
requires a sealed container, a product which may be deleteriously
affected by oxygen, an atmosphere which contains oxygen and carbon
dioxide as a result of a carbon dioxide flush, and as the
improvement a stable composition of at least five specific
ingredients (see the claim construction for claim 30, of similar
scope, on pages 8-9 of the decision in Appeal No. 1995-3770, Paper
No. 27).
The examiner finds that Nakamura discloses a sealed container
for preserving foods in the presence of a composition containing
five ingredients within the scope of claim 30 on appeal (Answer,
page 2). Although the examiner finds that Nakamura teaches broad
ranges for each ingredient and fails to teach the water content of
the water adsorbent, the examiner concludes that it would have been
well within the ordinary skill in the art to select amounts within
the broad ranges of Nakamura “to optimize the properties” and to
start with a dry water adsorbent since the reference teaches that
the package should be kept dry (Answer, paragraph bridging pages 2-
3).
We determine that the examiner has failed to address the
limitations of claim 30 as discussed above and as construed in our
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