Appeal No. 2002-2145
Application No. 09/113,808
taught by Urushizaki to maintain an acceptable level of fruit
quality. The resulting method would have satisfied each of the
argued requirements of appealed claim 1. In this latter regard,
it is necessary to point out that the appellants have somewhat
misconstrued the requirements of the appealed claims. More
particularly, after noting that the gaseous atmosphere of the
Florida Entomologist reference excludes oxygen, the appellants
state “Applicants’ claims, by contrast, call for a gaseous
atmosphere that must contain some oxygen, though at a
concentration no higher than 0.05% by volume” (brief, page 16).
In response to this statement, we reiterate the examiner’s
correct observation that the appealed claim 1 language “up to
0.05% oxygen by volume” encompasses the complete absence of
oxygen.3
The circumstances recounted above and in the answer lead to
a determination that the reference evidence adduced by the
examiner establishes a prima facie case of obviousness which the
appellants have not successfully rebutted with argument and/or
evidence of non-obviousness. See In re Oetiker, 977 F.2d 1443,
3 We additionally reiterate the examiner’s correct point that Liston’s
teaching also would have suggested oxygen contents within the here claimed
range.
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