Appeal 2007-2060
Application 09/945,318
In other words, the Examiner has correctly found that Thompson ‘990 and
Francis not only teach that a frangible puffed cereal-based foodstuff is
known, but also teach that such cereal-based foodstuff can be made to have a
certain desired crush resistance to avoid or minimize its breakage. The
Examiner has also correctly found that Maglecic and McCrosson teach
vacuum packaging foodstuff in a flexible bag in such a manner to obtain the
kind of advantage (filling a greater amount of food) recited in claim 1 and to
minimize the breakage of the soft foodstuff.
Given the desire to vacuum pack the free flowing breakfast cereal of
the type discussed in Thompson ‘990, we determine that one of ordinary
skill in the art would have been led to vacuum pack Thompson’s cereal
having a desired crush resistance, such as that claimed, in Beer’s oxygen and
moisture barrier containing flexible bag in the manner taught by Maglecic
and/or McCrosson, motivated by a reasonable expectation of obtaining the
advantages stated above.
The Appellants contend that one of ordinary skill in the art would not
have been led to package the frangible puffed cereal-based foodstuff in the
flexible bag of the type discussed in Beer (Br. 13-17 and 22-23). In support
of this contention, the Appellants refer to the Sacharow literature (Br. 16 and
Reply Br. 2-5).
We are not persuaded that the evidence as a whole would have led one
of ordinary skill in the art away from the claimed subject matter. We find
that Sacharow evidences that one of ordinary skill in the art was aware, at
the time of the invention, that such vacuum packaging would have delayed
spoilage of the food (due to oxidative rancidity and the inhibition of mold
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