Appeal 2007-2060
Application 09/945,318
Thompson et al. '438 teach puffed, cereals can be made into
either a regular shape, such as a ring, or an irregular shape, such
as a flake.
Regarding claims 45-47 and 51-57, modified Beer
teaches a seal strong enough to maintain vacuum conditions
such as a pressure sensitive cold seal and a tin tie, clip
or zipper, a brick/rectangular shaped bag with a bottom,
opening at the top, and sides … (Compare Answer 13, with Br.
19-20).
Rather, the Appellants rely on the same arguments raised in the
REJECTION (1) above. Therefore, based on the factual findings set forth
in the Answer and above, we determine that the preponderance of evidence
weighs most heavily in favor of obviousness of the subject matter claimed
within the meaning of 35 U.S.C. § 103.
REJECTIONS (7), (8), and (9): Claims 24, 32, 39, 78, and 79.
The Appellants have not disputed the Examiner’s determination that:
[I]t would have been obvious to further include marbits with the
cereal of Beer since it was known that this is a pleasing variety
of cereal….
[I]t would have been obvious to further modify Beer and flush
the bag with Nitrogen, since Beer teaches preventing the
degradation effects of air by gas flushing vacuum sealed bags
and Kraft Foods Inc. teach[es] a Nitrogen flush will protect
cereal products against oxidation when the cereal products held
in vacuum sealed bags.…
[I]t would have been obvious to modify Beer and select a
puffed oat flour-based cereal product, depending on the desired
type of flavor or nutrients desired since Beer teaches a free-
13
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