Appeal No. 2005-1101
Application No. 09/121,725
Regarding Exhibits 5-9 (the Chauvin, Michael Voisin, Nelson and Sunseri
Declarations, respectively), we adopt the examiner’s comments from the final Office
action dated Oct. 30, 2003 (page 5) and the Answer (page 8), noting that all of these
Declarations merely conclude that the method steps disclosed by JP ‘156 do not
inherently eliminate bacteria in shellfish but fail to present any evidence to support this
conclusion.
We agree with the examiner that Embodiment 1 of JP ‘156 anticipates claims 6
and 27 for the reasons discussed in the Answer and above. We conclude, as did the
examiner, that the process steps disclosed in JP ‘156 are identical to those of claims 6
and 27 (see our prior decision, paragraph bridging pages 7-8). A result that is inherent,
i.e., that inevitably and necessarily occurs, as in this case, need not be recognized in a
prior reference that teaches a process encompassed by the claimed process. See
MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d 1362, 1365, 52 USPQ2d 1303, 1305
(Fed. Cir. 1999).
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 (Answer, page 4, citing Cheftel).
The examiner has also established with credible and substantial evidence that the
claimed process steps are identical to those disclosed in JP ‘156, which utilizes the
same pressures and times as claimed by appellant (Answer, pages 3-4). Accordingly,
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