Appeal No. 2007-0737
Application No. 10/290,606
The following prior art references are relied upon by the Examiner as
evidence of unpatentability:
Ellis U.S. Pat. 2,191,524 Feb. 27, 1940
Donovan U.S. Pat. 3,483,908 Dec. 16, 1969
DeWitt1 GB 2,048,756 Dec. 17, 1980
Burnham U.S. Pat. 4,244,470 Jan. 13, 1981
Claims 1-5, 7, 9, and 10 stand rejected under 35 U.S.C. § 103(a) as
obvious over Ellis alone, or in view of Burnham, Donovan, or DeWitt. (Br.
2-3). The claims stand or fall together because Appellant has not separately
argued the patentability of any individual claims. We select claim 1 as
representative for the purpose of deciding this appeal. 37 C.F.R.
§ 41.37(c)(1)(vii). It reads as follows:
1. An ice cream scoop comprising a scoop portion and a handle
portion, said scoop portion having an interior and an exterior and
comprising a rim portion and a deformable portion, said rim portion
being formed of a rigid material and said deformable portion being
formed of an elastomer and forming at least a portion of the exterior
of the scoop portion.
ISSUE ON APPEAL
The Examiner contends that it would have been obvious to the skilled
worker to have eliminated the fluid or air pressure system utilized in Ellis’s
ice cream scoop to mechanically discharge ice cream from the scoop
portion. This modification, the Examiner argues, would result in an ice
cream scoop having a manually deformable exterior which performs the
1 Also referred to as “GB ‘756.”
2
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