Appeal No. 97-1640
Application 08/326,059
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is “in the form of an arcuate rib” and “generally arcuate in cross-section.” The examiner
asserts (answer, page 5):
appellants still fail to show that an arcuate reinforcing-
levering band [is] not anything more than one of
numerous configurations that a person having ordinary
skill in the art would find obvious for the purpose of
providing a grippable band in the Sowle packaging
sleeve.
We do not find the term “arcuate” in appellants’ specification, but assume that it
refers to the curled “rib-like structure 9'” (page 5, line 11) which the tear strip is said
to assume when the sleeve is heat shrunk onto an article (Figs. 10 and 11). With regard to
the examiner’s statement, supra, we note that it is not the appellants’ burden to show that
something is unobvious, but rather the examiner’s burden to present a
prima facie case of unpatentability. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992). We find no teaching, motivation or suggestion in Sowle or
Gottily to make the Sowle tabs 32, 34 of arcuate cross-section. Nor does it appear that
ears 32, 34 would inherently curl into an arcuate cross-section when cover 10 is heat
shrunk onto an object, as appellants’ strip 9 is disclosed as doing, because the Sowle
ears are prevented from shrinking by a shrink resistant coating 30.
We will therefore not sustain the rejection of claim 15.
4We note that in part (a) of claim 15, “second wall” apparently should be
--second wall portions--, and have so construed the claim. This error should be corrected
in any future prosecution.
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