Appeal No. 2007-0737
Application No. 10/290,606
The Examiner asserts that “Ellis teaches the basic claimed ice cream
scoop,” but does not describe that the claimed “deformable portion” forms
“at least a portion of the exterior of the scoop” as required by claim 1
(Answer 3-4). The Examiner argues that the “reason” this structure is
missing is because Ellis “uses a complicated air pressure” system in which
air is forced between the rigid exterior shell and the deformable interior
diaphragm, inverting the diaphragm to release the ice cream from the scoop
(id. at 4). The Examiner asserts that it would have been obvious to have
eliminated the structures “taught in Ellis to apply the air pressure and
[instead, to have] simply used the operator’s hand to depress the deformable
portion, such being fairly conventional in the art.” (id.)
Scope and content of the prior art/level of ordinary skill
Secondary references are relied upon by the Examiner to establish that
it was conventional at the time the application was filed to utilize
deformable containers to manually eject hardened foods from food molds.
We review these disclosures briefly:
1) DeWitt describes a mold for making confectionary products in
which the mold “has at least one base wall portion which is of greater
flexibility than the other wall portions.” (Abstract; p. 1, ll. 97-102; Fig. 1).
Ejection is accomplished by applying pressure to the outer surface of the
more flexible base wall (p. 1, ll. 123-129).
2) Donovan describes “containers having bottom portions flexibly
designed to aid in the discharge of a substantially solid substance
substantially in one piece.” (Col. 1, ll. 46-49.) The sidewalls of the
container are “provided with a series of substantially parallel ribs 20 which
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