Appeal No. 2002-0206
Application No. 09/121,725
prior reference that teaches a process encompassed by the claimed
process MEHL/Biophile Intl. Corp. v. Milgraum, 192 F.3d 1362,
1365, 52 USPQ2d 1303, 1305 (Fed. Cir. 1999)(“Inherency is not
necessarily coterminous with the knowledge of those of ordinary
skill in the art. Artisans of ordinary skill may not recognize
the inherent characteristics or functioning of the prior art”);
Id., at 1366, 52 USPQ2d at 1305-06 (“Where, as here, the result is
a necessary consequence of what was deliberately intended, it is
of no import that the article’s authors did not appreciate the
results.”).
In the present instance, the Examiner has put forth credible
and substantial evidence in the record that the pressure treatment
of seafood destroys pathogenic microorganisms such as Vibriones
(claim 6) in oysters. (Examiner’s Answer, page 4, lines 10-12;
citing Cheftel, page 204, heading 1.2). The examiner has also
established with credible and substantial evidence that the
claimed process steps are identical to that disclosed in Yasushi,
which utilizes the same pressures as claimed by the appellant.
(Examiner’s Answer, page 4, lines 5-7).
We agree and also independently find that the effect claimed
is necessarily and inevitably contained in the prior art
disclosure of Yasushi. See, e.g., findings of fact 13 - 15.
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