Appeal No. 2005-1558
Application No. 09/949,704
batches of oysters “containing oysters of varying sizes and densities” (Declaration, page
2). This statement goes directly against the teachings of Tesvich ‘064, who teaches
that “[d]uring separation step 14 the product is also separated into grades according to
size” (col. 5, ll. 11-13). Tesvich ‘064 also teaches that the conditions used in his “mild
heat treatment process” that are necessary to eliminate bacteria and allow the oyster to
remain uncooked depends on the time, temperature and “grade size” of the oyster (col.
5, ll. 44-47). Accordingly, there is no convincing evidence that the final oyster product
tasted by Nelson is the final oyster product of Tesvich ‘064.
The Sunseri Declaration is essentially the same as the Nelson Declaration and
we find the same deficiencies in this Declaration. Accordingly, we adopt our comments
from above.
For the foregoing reasons and those stated in the Answer, we determine that the
examiner has established a prima facie case of anticipation based on the reference
evidence. Based on the totality of the record, including due consideration of appellant’s
arguments and evidence, we determine that the prima facie case of anticipation has not
been adequately rebutted. See In re Brown, supra. Therefore we affirm the examiner’s
rejection of claim 5, and claims 27 through 38 which stand or fall with claim 5, under 35
U.S.C. § 102(e) as anticipated by Tesvich ‘064.
OTHER ISSUES
In the event of further prosecution of this application or continuing applications
before the examiner, the examiner and appellant should consider the patentability of the
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