Appeal No. 96-3611
Application No. 08/306,688
to seat a baseball 10, we agree with appellants (Brief, page 7)
that “[t]here is no elongated tube, and no ‘internally projecting
flange portion defining a concave surface to engage the adjacent
end of the collectable bat’ on each end closure as set forth in
Claim 1.”
In the final analysis, we agree with appellants that “the
references, taken as a whole, do not suggest the subject matter
of Claim 1,” and that the examiner has resorted to impermissible
“hindsight” to demonstrate the obviousness of the claimed subject
matter (Brief, page 7). The 35 U.S.C. § 103 rejection of claim 1
is reversed because the examiner has failed to present a prima
facie case of obviousness.2
2In view of the lack of a prima facie case of obviousness,
we see no need to comment on appellants’ evidence of commercial
success.
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