Appeal No. 2006-0064 Παγε 13
Application No. 09/155,740
teaching away from the claimed subject matter as appellants
maintain. In this regard, we find no discouragement in Hsieh
with respect to using a water activity controlling solute as a
preservative in an intermediate moisture food, such as the
hydrated dates of Reznik. Reznik clearly teaches that other water soluble
agents can be employed in the vacuum hydration step to protect the fruit from spoiling
during storage. Thus, this disclosure of Reznik coupled with the admitted prior art
teachings concerning the use of humectants (water activity control agents) in foods
having intermediate moisture contents for preservation purposes would have fostered
little in the way of disincentive in adding such water activity controlling solutes to Reznik.
Morever, the teachings of Hsieh with respect to tumbling raisins and other fruits for
adding higher amounts of humectants than otherwise may be obtainable for storage of
fruit products with ready to eat cereals has not been shown to constitute a teaching
away from using such known humectants for aiding in the preservation of the
rehydrated date product of Reznik. The mere fact that more than one way of adding
such humectants to fruits may be described in Hsieh, with tumbling providing certain
advantages according to Hsieh, does not militate against or teach away from employing
such humectants (solutes) in Reznik’s vacuum process as agents to deter fruit spoilage
during storage.
Appellants contend that one of ordinary skill in the art would not know how to
combine Hsieh and Reznik because Reznik is concerned with vacuum
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