Appeal 2007-1858
Application 10/800,566
and col. 5, ll. 1-16). Krishnakumar does not specifically mention the wide-
mouth pasteurizable plastic container recited in claim 3 and the
pasteurization temperature recited in claim 9.
The dispositive question is, therefore, whether one of ordinary skill in
the art would have been led to employ the claimed wide-mouth pasteurizable
plastic container and pasteurization temperature within the meaning of 35
U.S.C. § 103. On this record, we answer this question in the affirmative.
Although Krishnakumar exemplifies pasteurizing beverage, such as
juice, in a narrow-mouth container, it is not limited to such a container. As
indicated supra, Krishnakumar broadly teaches employing flexible panels on
the side wall of any “pasteurizable plastic container” to minimize excessive
permanent deformation of the container during pasteurization and cooling.
Thus, for given food products to be pasteurized, one of ordinary skill in the
art would have been led to select appropriately sized pasteurizable plastic
containers, including those having wide-mouth openings, and appropriate
pasteurization temperatures. KSR Int’l Co., 127 S. Ct. at 1740-41,
82 USPQ2d at 1396; DyStar Textilfarben GmBH, 464 F.3d at 1361,
80 USPQ2d at 1645; Bozek, 416 F.2d at 1390, 163 USPQ at 549. This is
especially true in this situation since the pasteurizable plastic container
opening sizes and pasteurization temperatures are result effective variables,
i.e., they are known to be dependent on the types and sizes of food products
to be pasteurized. See In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219
(CCPA 1980) (“[D]iscovery of an optimum value of a result effective
variable in a known process is ordinarily within the skill of the art.”).
In any event, Prevot refers to a high temperature resistant blow-
molded plastic container useful for packaging food product such as beverage
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