Appeal 2006-3262
Application 10/780,255
OPINION
Upon review of the opposing arguments and evidence advanced by
the Examiner in the Answer and Appellant in the Briefs in support of their
respective positions, we conclude that the Examiner has not established a
prima facie case of obviousness for the claimed subject matter.
Accordingly, we will not sustain the Examiner's § 103 rejection for reasons
set forth in Appellant's Briefs, as further discussed below.
Under 35 U.S.C. § 103(a), the Examiner carries the initial burden of
establishing a prima facie case of obviousness. In re Piasecki, 745 F.2d
1468, 1471-72, 223 USPQ 785, 787-88 (Fed. Cir. 1984). As part of meeting
this initial burden, the Examiner must determine whether the differences
between the subject matter of the claims and the prior art “are such that the
subject matter as a whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art” (emphasis added).
35 U.S.C. § 103(a)(1999); Graham v. John Deere Co., 383 U.S. 1, 14,
148 USPQ 459, 465 (1966). The applied prior art references as a whole
must be viewed from the perspective of one of ordinary skill in the art to
determine whether “some suggestion” is present to arrive at the claimed
subject matter. Cf. In re Mills, 470 F.2d 649, 651, 176 USPQ 196, 198
(CCPA 1972).
The Examiner relies on Roth for teaching: (1) contacting ground meat
with a working gas under pressure using a reciprocating pump; (2) releasing
the pressure; and then (3) transporting the meat to reduce the microbial
content and to maintain the color of the meat. The Examiner correctly
observes that the reciprocation pump action and subsequent meat transport
of Roth results in mechanical action being applied to the meat of Roth (Non-
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