Appeal 2007-1913
Application 10/299,661
Ammarell; (2) claims 6, 7, 12, 37, 38, 43, 68, 69, 74, 95, 96, and 101 as
unpatentable over Perl in view of Ammarell and further in view of Cantone; (3)
claims 16, 17, 27, 47, 48, 58, 85, 105, 106, and 115 as unpatentable over Perl in
view of Ammarell and further in view of Gueret ’708; (4) claims 28, 59, 86, and
116 as unpatentable over Perl in view of Ammarell and further in view of
Montgomery; and (5) claims 18-22, 49-53, 76-80, and 107-111 as unpatentable
over Perl in view of Ammarell and further in view of Gueret ’985. The correctness
of the above rejections turns on whether any of the cited references disclose “a
second recess portion” and “wherein at least one of the first recess portion and the
second recess portion is positioned closer to the opening of the container than a
bottom of the container” as required by claim 1.
Rather than repeat the arguments of Appellant and the Examiner, we make
reference to the Briefs and the Answer for their respective details. Only those
arguments actually made by Appellant have been considered in this decision.
Arguments which Appellant could have made but chose not to make in the Briefs
have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2004).
FINDINGS OF FACT
We find the following enumerated findings to be supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427, 7
USPQ2d 1152, 1156 (Fed. Cir. 1988) (explaining the general evidentiary standard
for proceedings before the Office).
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