Appeal No. 2003-0030
Application No. 09/660,871
supporting rods 15 "extend almost to the level of the top edge of
the tray." For the reasons which follow, we determine that one
skilled in the art, considering the entirety of the Bauer
disclosure, would not expect the supporting rods 15 to be below
the high flange of the tray 16 immediately after commencement of
the charging operation. Patentee Bauer makes it clear to us that
an object of the invention is to provide a lower risk of damage
during tray-charging, when articles are dropped and fall by
gravity a short or very small distance and attain only a small
kinetic energy before being mechanically braked and then
introduced in a controlled manner into a tray (column 1, lines 46
through 68, column 2, lines 4 through 11 and lines 24 through
27, and column 3, lines 47 through 53). In light of the above,
we are of the view that it would make no sense to one skilled in
the art to expect in the Bauer apparatus that the supporting rods
would be below the high flange of the tray at the time of
commencement of article charging since such a rod position would
clearly not present a very small article dropping distance
wherein only a small kinetic energy would be attained to lower
the risk of article damage. Accordingly, the Bauer patent as a
whole cannot fairly be understood to anticipate appellants'
method step limitation of containers that "fall into" a case, a
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