Appeal No. 2001-0109
Application 08/871,898
In the final office action, the Examiner stated, “Ecklund
does not disclose that the mouth of the bag lies stretched over
the outer surface of the plug and secured by a ring . . .”.
See Final Office Action, Paper No. 5, dated April 28, 1999,
page 3, lines 16-18. However, in response to Appellant’s
arguments upon appeal, the Examiner changed positions in the
Examiner’s Answer. The Examiner now asserts that Ecklund does
teach a lip stretched over the outer surface of the plug. The
Examiner relies upon Ecklund’s teachings that the plug (44) has
a “diameter substantially similar to the inner diameter” of the
mouth of the bag (32)(e.g. 1.305 inches). The Examiner
concludes that the bag (32) must be stretched in order to lie
over the surface of plug (44). See Examiner’s Answer, Paper
No. 19, dated March 28, 2000, page 6, line 14 through page 7,
line 1.
In rejecting claims under 35 U.S.C. § 103, the Examiner
bears the initial burden of establishing a prima facie case of
obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ 1443,
1444 (Fed Cir. 1992). See also In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed Cir. 1984). The Examiner can
satisfy this burden by showing that some objective teaching in
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