Ex parte CLARK et al. - Page 6

          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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