Appeal 2007-2060
Application 09/945,318
REJECTION (1): Claims 1, 10, 12, 15, 27 through 29, 41, 42, 59 through
61, 65, and 77.
The Appellants have not disputed the Examiner’s finding that Beer
teaches a vacuum sealable bag for packaging food products corresponding to
that recited in claims 1 and 77. Compare Answer in its entirety with Brief
and Reply Brief in their entirety. Nor have the Appellants disputed the
Examiner’s finding at page 4 of the Answer that a vacuum-sealed opaque
oxygen impermeable package, which prevents oxygen and light entry, would
necessarily have less than 1 ppm hexanal.2 Compare Answer in its entirety
with Brief and Reply Brief in their entirety. Rather, the Appellants contend
that one of ordinary skill in the art would not have been led to employ Beer’s
bag to vacuum pack the claimed “frangible” puffed cereal-based material to
obtain the increased amount of the cereal filling (20 to 60% more) (Br. 12-
17, and 22-29, and Reply Br. 2-5).
The dispositive question is, therefore, whether one of ordinary skill in
the art would have been led to employ Beer’s oxygen and moisture barrier
containing flexible bag to package “a frangible puffed cereal-based material
having a crush resistance or resistance to compression no less than about 7.0
PSIA” to increase its amount (20 to 60% more) filled in the bag as recited in
claim 1 within the meaning of 35 U.S.C. § 103. On this record, we answer
this question in the affirmative.
As indicated at col. 2, ll. 5-62, and col. 3, ll. 25-27, of Beer, its
vacuum sealing flexible bag can be advantageously used to package various
air-perishable foodstuffs, including, but not limited to, free flowing ready to
2 Indeed, we observe that Beer does not mention any hexanal presence.
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