Appeal No. 2005-1558
Application No. 09/949,704
col. 4, ll. 26-39). If the temperature of the water bath and duration of the heat treatment
were sufficient to “cook” the oyster meat of selected oysters (Tesvich ‘601, col. 4, ll.
26-39), one of ordinary skill in this art would not have employed these conditions in view
of the teachings of Tesvich ‘064 discussed above.
Appellant argues that the claimed terms “post-pressurized” and “pressure-
shucked” are terms describing physical characteristics of the product (Brief,
unnumbered page 11; Reply Brief, page 4). Appellants further argue that evidence has
been submitted that shows the end product of the claims differs from the end product of
the reference (Brief, unnumbered page 6). This evidence comprises Exhibits 1 through
4 and Exhibit A, including the statement of Dr. Kilgen, the letter from Drs. Bell and
Bankston, the studies by Dr. Xu, and the Declarations under 37 CFR § 1.132 by Mr.
Nelson and Mr. Sunseri (Brief, unnumbered pages 7-10; Reply Brief, pages 4-8
including Exhibit A). We do not find this evidence persuasive for the following reasons.
The Kilgen letter (Exhibit 1) is not probative evidence since the letter only refers
to the processes of “thermal or heat processing” and “high pressure processing (HPP)”
in general, with no specific statement regarding the specific process as now claimed on
appeal versus the specific heat treatment of Tesvich ‘064 (see the Answer, page 6).
The conclusions set forth in the Kilgen letter specifically depend “on the level of heat,”
indicating that new permanent covalent bonds may be formed (third full paragraph, last
sentence, emphasis added). Accordingly, there is no conclusive evidence in this letter
that the oysters as claimed in claim 5 on appeal differ from those produced by the
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