Appeal No. 1998-0546
Application No. 08/560,507
357 F.2d at 672-73, 149 USPQ at 50. The question before us
involves considerably more than a mere difference in the shape
of a claimed element and the shape of the corresponding
element in the prior art; instead, the question is whether it
would have been obvious to provide Yoshikawa's container with
a tab that is "integrally formed with said container," which
we understand to mean that the tab is formed as a portion of
the container at the same time that the container is formed.
In our view, the rejection cannot be sustained in the absence
of either (a) a reference suggesting the claimed tab structure
or (b) an explanation of why the claimed tab structure would
have been obvious even in the absence of a teaching reference.
See In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA
1969) (a holding of obviousness properly may be based on the
"common knowledge and common sense of the person of ordinary
skill in the art without any specific hint or suggestion in a
particular reference"). The rejection of claim 1 is therefore
reversed.
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