Appeal No. 96-0610
Application 08/257,449
have been evident to one of ordinary skill in the art that as
an alternative to retaining the capability of reattaching the
patentee’s cover to the container, the cover may be eliminated
without providing for the reattachment thereof. In this
regard, it is well established patent law that the elimination
of an element such as Spangler’s cover together with its
function would have been an obvious expedient. See In re
Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 9 (CCPA 1975).
Given the self-evident alternative of permanently
eliminating Spangler’s cover without providing for its
reattachment, it would have been obvious to one of ordinary
skill in the art from the patentee’s teaching of conserving
space (see page 1, lines 16-24 of the Spangler specification)
to vertically lower the common level of the hinges for the end
walls to allow the end walls to lie flat on the upper sidewall
in the collapsed condition of the container rather than
leaving a void space previously occupied by the cover.
Indeed, skill in the art is presumed, not the converse. In re
Sovish, 769 F.2d 738, 742, 226 USPQ 771, 774 (Fed. Cir. 1985).
For the foregoing reasons, the subject matter of appealed
claims 1 and 17 would have been obvious from Spangler alone.
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