Appeal No. 97-2581
Application 29/031,665
that it establishes unobviousness in it’s configuration. An average observer would
merely view it [as] a minor modification to the lid. Furthermore, the cylinder end
would be hidden in use and would not be visible in it’s normal use unless someone
looks closely inside the lid. [Page 5.]
On the other hand, the main thrust of the appellant’ position is that
. . . there is no teaching in any of the secondary references of the depression of the
present lid that replace[s] the simple opening of Ferrero. As may be seen quite
clearly in Fig. 1, the opening of the present design is surrounded by a cylindrical
inner wall which terminates in an inverted dome, see Figs. 4 and 5. This inner wall
is quite visible when viewed as in Fig. 1 and the inverted dome at the bottom of the
depression may be seen when viewed from the top or bottom of the present lid.
Thus, the similarity between the present design and the cited references ends when
the present lid is viewed from a direction other than the side. [Brief, pages 3 and
4.]
OPINION
Having carefully considered the respective positions advanced by the appellant in the brief
and the examiner in the answer, it is our conclusion that the references relied on by the examiner
fail to establish the obviousness of the design claim on appeal within the meaning of 35 U.S.C. §
103.
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Last modified: November 3, 2007