Appeal No. 2005-1013
Application 09/767,155
obvious to one of ordinary skill in the art to obtain the
benefits of the Perry opening system in a current beverage
container design.
Even assuming that it would have been obvious to use the
Perry opening system (i.e., as shown in Fig. 28) in a current
beverage container design wherein the lid has a diameter less
than the diameter of the cylindrical container, we do not see
that a beverage container like that set forth in claims 1 through
7 on appeal would have been the result. As appellants have argued
(brief, page 6), the Perry patent teaches a two-step opening
operation (see col. 11, lines 19-25), while the claims on appeal
require a small pull tab “for engaging and opening the lid at the
puncture point along the score line in a single operation.” The
examiner has not addressed this argued difference between the
container resulting from the proposed combination of prior art as
discussed above and the container required in appellants’ claims
on appeal. Thus, the examiner has not set forth a prima facie
case of obviousness with regard to a beverage container as
defined in the claims on appeal.
7
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