Appeal No. 97-3661
Application No. 08/456,692
funnel be of a “unitary one-piece continuous construction,” as
also is required by these three independent claims. This being
the case, Melvin does not anticipate these claims, and the
rejection under Section 102(b) cannot be sustained. It then
follows that the like rejection of dependent claims 24, 25, 39,
43 and 44 cannot be sustained.
Additionally, we do not agree with the examiner that the
“recess” recited in claims 25 and 44 is present in Melvin, and
for this reason also claims 25 and 44 are not anticipated by
Melvin.
New Rejection By The Board Under 35 U.S.C. § 103
Pursuant to our authority under 37 C.F.R. § 196(b), this
panel of the Board enters the following new rejection:
Claims 23, 24, 38, 39, 42 and 43 are rejected under 35
U.S.C. § 103 as being unpatentable over Melvin.
The question under 35 U.S.C. § 103 is not merely what the
references expressly teach but what they would have suggested to
one of ordinary skill in the art at the time the invention was
made. See Merck & Co., Inc. v. Biocraft Laboratories, Inc., 874
F.2d 804, 807, 10 USPQ2d 1843, 1846 (Fed. Cir. 1989) and In re
Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981). While
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