Appeal 2007-2673
Application 10/354,981
ozone treatment “temperature and for a time sufficient to substantially
sanitize the foodstuff” as required by claim 1.
Even were we to determine that Sharma does not specifically teach
elimination of more than 90% E. coli, our conclusion would not be altered.
We find that Sharma teaches at pages 448 and 451 that the claimed ozone
treatment conditions (e.g., temperature and contact time) are dependent on,
inter alia, the microorganisms involved and the type of foodstuffs involved.
Thus, we concur with the Examiner that the determination of optimum
ozone treatment conditions (temperature and contact time) is well within the
ambit of one of ordinary skill in the art. 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.”).
Accordingly, based on the factual findings set forth in the Answer and
above, we determine that substantial evidence supports the Examiner’s
finding that Sharma would have rendered the subject matter defined by the
claims on appeal obvious to one of ordinary skill in the art within the
meaning of 35 U.S.C. § 103.
ORDER
In view of the foregoing, the decision of the Examiner is affirmed.
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