Appeal No. 2006-1612 Page 10
Application No. 10/153,376
Rejection under 35 U.S.C. § 103(a)
The examiner has determined that Tominaga discloses the invention recited
in claims 1, 4, 5, and 8 except for the female profile being partially cylindrical
through greater than 180 degrees. The examiner found that it would have been an
obvious matter of design choice to make the female profile of Tominaga partially
cylindrical through greater than 180 degrees or whatever form or shape was desired
or expedient. (Examiner’s Answer, p. 5, citing In re Dailey, 149 USPQ 47, 50
(CCPA 1966) (A change in form or shape is generally recognized as being within
the level of ordinary skill in the art, absent any showing of unexpected results)).
The appellant does not contest the examiner’s position regarding the
obviousness of the shape of the female profile. Rather, the appellant argues that
the resilient partition of Tominaga merely deflects, rather than collapsing, so that
Tominaga does not teach or suggest a “collapsible element forming a hermetic
seal” as recited in independent claims 1 and 5. (Appellant’s Brief, p. 7).
The examiner responds that Tominaga is directed to a “gas-and-water tight
flexible fastener, and that the resilient means (10) aids in forming a hermetic seal
when the male and female profiles are engaged. (Examiner’s Answer, p. 6). The
examiner further notes that the claim does not require the hermetic seal to be
located solely at the collapsible element. (Examiner’s Answer, p. 7).
We disagree with the appellant’s position that the resilient partition of
Tominaga does not collapse to form a hermetic seal. As pointed out by the
examiner, Tominaga is directed to a “gas-and-water-tight” fastener. This
description of the fastener clearly suggests that an airtight or hermetic seal is
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