Appeal No. 2005-1101
Application No. 09/121,725
the burden has shifted to appellant to show that the prior art process does not act to
reduce or eliminate the pathogenic bacteria in oysters. See In re Best, 562 F.2d 1252,
1255, 195 USPQ 430, 433-34 (CCPA 1977). The appellant has not carried this burden,
and consequently the prima facie case of anticipation of claims 6 and 27 must be
affirmed.
C. The Rejection under § 103(a)
The examiner applies JP ‘156 for the reasons discussed above and in the
(Answer, pages 3-4), with the examiner further finding that JP ‘156 is silent regarding
the use of refrigerated temperatures and the use of bands around the oyster shells
Answer (page 4). The examiner applies Tesvich to show these well known features
(Answer, page 5). Appellant does not contest or dispute the examiner’s findings
regarding Tesvich (Brief, pages 14-17) but repeats the arguments discussed above.
Therefore we adopt our comments from above, as well as the findings and conclusion of
law set forth by the examiner, and affirm the examiner’s rejection based on section
103(a).
D. Summary
The rejection of claims 6 and 27 under 35 U.S.C. § 102(b) over JP ‘156 is
affirmed.
The rejection of claims 3, 4 and 7 under 35 U.S.C. § 103(a) over JP ‘156 in view
of Tesvich is also affirmed.
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