Appeal 2006-3311
Application 10/392,525
1 a first pair of opposing closure panels extending from the
2 first pair of opposing side panels and each closure panel having
3 an opposing hook closure device; and
4 a second pair of opposing closure panels extending from
5 the second pair of opposing side panels and each closure panel
6 having an opposing closure device,
7 wherein an area of either pair of opposing closure panels
8 exceed 85% of an area of an opening defined by edges of the
9 pairs of opposing side panels distal to the bottom panel.
10
11 The Appellant urges that neither DeMay nor Collins explicitly teach
12 that the area of each pair of opposing closure panels exceed 85% of the area
13 of the opening defined by the edges of the pairs of opposing side panels.
14 The Appellant cites In re Wertheim 541 F. 2d 257, 191 USPQ 90 (CCPA
15 1976) for the proposition that a claimed range may be prima facie obvious
16 when the claimed ranges overlap or lie within ranges disclosed by the prior
17 art. The Appellant then again urges that neither DeMay nor Collins teaches
18 or suggests a particular range of closure for its panels, let alone one
19 overlapping or within the Appellant’s claimed range in excess of 85%. (Br.
20 p. 14, l. 21 - p. 15, l. 9).
21 We are not persuaded by this argument. Discovering the optimal
22 amount of lid coverage for the flaps of a portable food container would have
23 been obvious to one of ordinary skill in the art and could have been arrived
24 at by routine experimentation. See In re Boesch, 617 F.2d 272, 276, 205
25 USPQ 215, 219 (CCPA 1980) (“[D]iscovery of an optimum value of a result
26 effective variable in a known process is ordinarily within the skill of the
27 art.”); In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
28 (“[W]here the general conditions of a claim are disclosed in the prior art, it is
17
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