Appeal No. 2005-1101
Application No. 09/121,725
and temperature (see claim 6 on appeal). Accordingly, appellant’s Exhibits fail to
provide evidence that JP ‘156 does not put this process in the hands of one of ordinary
skill in this art, but instead the Exhibits are directed to the “partially non-enabling”
disclosure of shucking in JP ‘156. This evidence is not persuasive of non-enablement
or inoperability of the process of JP ‘156.
Even assuming the relevance of the Exhibits, we note the following deficiencies
in the evidence presented. In Exhibit 1 (the Voisin Declaration), the tests are done at an
“ambient temperature” of 50°F. but there is no evidence that this is the same ambient
temperature employed by JP ‘156. Furthermore, the test at 1000 atm. fails to reveal the
duration (time) of the test (Exhibit 1, page 1). Finally, we note that the Declaration
(Exhibit 1, page 2) admits that 80% of the oysters were shucked at the temperature,
pressure and duration exemplified in Embodiment 1 in ¶[0010] of JP ‘156. We also note
that Exhibit 2 is merely a duplicate of Exhibit 1.
In Exhibit 3, JP ‘157 merely is an improvement over JP ‘156, using lower
pressures (and correspondingly higher temperatures) to avoid the expense of
employing costly high pressure treatment (JP ‘157, ¶[0004, 0006, and 0053]). As
shown by Exhibits 4 and 5, shucking of the oysters occurred within the pressures and
times taught by JP ‘156 (assuming that ambient temperature is 50°F.). We note that the
times for low pressure treatment exemplified in Table 1 (Exhibit 4) were less than the
times taught by JP ‘156 (see ¶[0006]).
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