Appeal No. 2002-0206
Application No. 09/121,725
molluscan shellfish” and “causing elimination of naturally-
occurring marine bacteria, while retaining sensory
characteristics”; and in claim 4 of exposing raw shellfish “to
isostatic pressure for a time period sufficient to eliminate
Vibrio Vulnificus bacteria” (Appeal Brief, page 12, lines 1-8).
The appellant also urges that the examiner has used impermissible
hindsight to use high-pressure processing to eliminate pathogenic
organisms while retaining raw sensory characteristics, which is
not taught by Yasushi (Appeal Brief, page 12, lines 13 - 23).
D. Findings of Fact
The findings of fact from section 2 D are adopted in full as
if fully set forth again herein.
E. Conclusions of Law
The arguments made by the appellant vis-à-vis the obviousness
rejection of claims 3 and 4 are misplaced. The examiner has not
ignored limitations in the claims nor has he stated that it would
have been obvious to use isostatic pressure to kill Vibriones.
The examiner has concluded that it would have been obvious to
refrigerate the oysters processed by Yasushi, which oysters
inherently have had the Vibriones bacteria destroyed. (Examiner’s
answer, page 5, lines 2-4 and page 8, lines 11-16).
As noted above, an inherent result need not be recognized in
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