Appeal No. 2005-1558
Application No. 09/949,704
49; and col. 6, ll. 19-24); and (3) retains its natural fluids or liquor, thus retaining its
natural flavor and raw texture (col. 3, ll. 1-4; col. 5, ll. 52-55; and col. 6, ll. 15-18). Thus
the only difference between the claimed raw shellfish and the product of Tesvich ‘064 is
that the claimed product has been post-pressurized and pressure-shucked while the
product of Tesvich ‘064 has been shucked conventionally, i.e., mechanically or manually
shucked. For reasons discussed below, we find no probative evidence that the
manually or mechanically shucked product of Tesvich ‘064 differs from the pressure-
shucked claimed product.
Appellant argues that the cited reference does not disclose a bacteria-free
product, as evidenced by later admissions of the same inventors (Tesvich ‘601)(Brief,
unnumbered page 6). Appellant argues that Tesvich ‘601 (Exhibit 5) acknowledges that
the heating of oysters in their shells to temperatures above 53 °C. (127.4 °F.) causes
edges of the meat to curl and shrink due to protein degradation, thus “cooking” the
oyster (Brief, unnumbered page 10). Appellants also argue that Tesvich ‘601 teaches
that the water bath temperature must be between 49 and 55 °C. to kill Vibrio vulnificus
bacteria (id.). Thus appellants assert that Tesvich ‘064 does not disclose a “practical”
method of eliminating bacteria, the product of the ‘064 patent is “cooked,” and undue
experimentation is required to follow the ‘064 patent to achieve the claimed result (Brief,
unnumbered pages 10-11).
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