Appeal No. 96-0619
Application 08/075,409
examiner under the provisions of 37 CFR § 1.142(b) as being directed to a nonelected species.2
The appellant’s invention pertains to a resinous container and a closure cap therefore.
Independent claim 1 is further illustrative of the appealed subject matter, a copy of which may be
found in the appendix to the appellant’s brief.
The reference relied on by the examiner is:
Ochs 5,062,538 Nov. 5, 1991
Claims 1-12 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Ochs. It is
the examiner’s position that:
Ochs teaches a package with a pressure venting closure comprising a
container 10 with a neck finish 12, and opening 41, a frustoconical sealing surface
15, a thread 11, and an annular engagement bead (not numbered), and a closure 32
with an end wall 30, 33, a side wall 26, 43, a frustoconical sealing area 39, a thread
28, means for venting 56, a tamper indicating band (annular retaining bead) 32, 58,
and a domed inner surface 34. [Answer, page 3.]
In support of this position the answer also states that:
In response to Appellant’s arguments directed to the reference of Ochs not
teaching a closure with an end wall and a cylindrical side wall integrally formed
therewith, the examiner submits the following case law.
2In the first Office action (Paper No. 7) the examiner required an election of species
between: “Species 1 of figures 1-3, Species 2 of figures 4-6, and Species 3 of figures 7-9" (see
page 2). In response to this requirement the appellant in Paper No. 8 elected the “species 2
shown in Figures 4 to 6, inclusive,” further stating that claims 1-12 were readable on this species.
We observe, however, that independent claims 1 and 11 (the only independent claims in the
application) are only readable on the species of Figs. 1-3.
2
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