Appeal No. 96-0619
Application 08/075,409
Since the end wall of Ochs cannot be fairly construed as being “formed integrally” with the
generally cylindrical side wall as expressly required by independent claims 1 and 11, we will not
sustain the rejection of claims 1-12 under 35 U.S.C. § 102(b) based on this reference.
Under the provisions of 37 CFR § 1.196(b) we make the following new rejection.
Claims 9 and 10 are rejected under 35 U.S.C. § 112, first paragraph, as being based on a
non-enabling disclosure. We initially observe that the test regarding enablement is whether the
disclosure, as filed, is sufficiently complete to enable one of ordinary skill in the art to make and
use the claimed invention without undue experimentation. See In re Scarbrough, 500 F.2d 560,
566, 182 USPQ 298, 302 (CCPA 1974) and In re Wands, 858 F.2d 731, 737 8 USPQ2d 1400,
1404 (Fed. Cir. 1988). The appellant’s disclosure fails to teach how to make and use an
embodiment having threads as set forth in dependent claim 9 and a tamper ring as set forth in
dependent claim 10, while at the same time having (1) an annular bead on the closure and (2)
venting means operative upon the opening of the container as set forth in parent claim 1. The
only embodiment disclosed as having (1) an annular bead on the closure and (2) venting means
operative upon the opening of the container is the embodiment of Figs. 1-3. On the other hand,
the only embodiment disclosed as having mating both threads and a tamper ring indicating means
is the embodiment of Figs. 4-6.
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