Appeal No. 2006-1798
Application No. 09/966,413
phrase "comprising" which is open-ended. In addition, we note that the claim
language "a wick support attached to the sheet” does not recite that there is a direct
attachment to the sheet by the wick support. As broadly drafted, the claim does not
preclude the wick support from being attached to the sheet through an integral
pedestal. Thus, from this claim construction, we hold that the embodiment of
figure 13 of Pappas meets the language of claim 1, and will also sustain the
rejection of claims 1, 3, 5-13, 16, 17, and 24 for this reason. While this is, in
effect, a holding that claim is anticipated by under 35 U.S.C. ' 102(b), affirmance
of the 35 U.S.C. ' 103 rejection is appropriate, since it is well settled 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
1974).
We turn next to claim 4. This claim is directed to the further limitation that
the flame-resistant sheet has an adhesive backing that bonds to both the wick
support and the bottom surface of the candle. The examiner's position (answer,
pages 9 and 10) is that Pappas discloses the plate 114 as being mounted to the
bottom of the candle and refers to the plate as an attached plate, but does not give
any detail as to the type of mounting or attaching means employed. The examiner
(answer, page 10) relies upon the disclosure of Pappas that the pedestal can be
attached to a container by adhesives.
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