Appeal No. 98-2414
Application 08/507,339
patent attached to the appeal brief and Exhibit B attached to
the reply brief weigh heavily against the examiner’s asserted
position on inherency. We also note the lack of any response
from the examiner addressing the evidence submitted by
appellant.
It is our view that the examiner's position with
regard to the formation of the end closure of Saunders is
based on conjecture, speculation and hindsight reasoning. One
of ordinary skill in the art viewing the Saunders disclosure
and that of Faulkner (relating to kitchen and cooking
utensils) would not have been led to the inevitable conclusion
that the end closure of the container in Saunders would have
the configuration claimed by appellant in independent claims
12 and 26 on appeal. See In re Oelrich, 666 F.2d 578, 212
USPQ 303 (CCPA 1981). This conclusion is bolstered by the
fact that Figures 9, 10 and 14 of Saunders each show the end
closure therein as having a generally
6
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