Appeal No. 2002-1054 Page 4
Application No. 09/436,333
Appellant argues the suggestion of adapting Cooley by Eastman can be made
only in the light of the invention. We agree. We find nothing in Cooley that suggests
that a flush top is desirable. In fact, in our view a flush top may interfere with the items
contained in the Cooley container. We note that Cooley discloses that the cover is
slightly elevated so that the cover is free to slide back and forth from a closed to an
open position without binding and with a minimum of friction (col. 3, lines 24 to 29).
In view of the foregoing, we will not sustain the rejection as it is directed to claim
1 and claims 2, and 7 dependent thereon.
In regard to claim 10, we note that Eastman discloses a method of fabricating a
container having an exterior and an interior storage capability which comprises the
steps recited in claim 10. In addition, Cooley likewise discloses a method of fabricating
a container having an exterior and an interior storage capability which comprises the
steps recited in claim 10. As such, in our view, either Eastman or Cooley anticipates
the subject matter recited in claim 10 because each reference alone discloses each and
every step of claim 10. We note that a disclosure that anticipates under 35 U.S.C.
§ 102 also renders the claim unpatentable under 35 U.S.C. § 103, for "anticipation is
the epitome of obviousness." Jones v. Hardy, 727 F.2d 1524, 1529, 220 USPQ 1021,
1025 (Fed. Cir. 1984). See also In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569,
571 (CCPA 1982); In re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA
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