Appeal No. 97-4151
Application 08/379,181
(col. 1, line 61) that their containers may be made of
plastic, it would be remarkable if one of ordinary skill would
not have found it obvious to make the container of Phibbs, as
modified by Trombly, out of at least one of the plastics
claimed by appellant; as
stated in In re Leshin, 227 F.2d at 199, 125 USPQ at 417-18:
Mere selection of known plastics to make a
container-dispenser of a type made of plastics prior
to the invention, the selection of the plastics
being on the basis of suitability for the intended
use, would be entirely obvious; and in view of 35
U.S.C. 103 it is a wonder that the point is even
mentioned.
Accordingly, the rejection of claims 1, 8 to 11 and 18 to
20 under 35 USC § 103 will be sustained.
Conclusion
The examiner’s decision to reject claims 1 to 3, 5 to 13
and 15 to 20 is affirmed as to claims 1, 8 to 11 and 18 to 20
and reversed as to claims 2, 3, 5 to 7, 12, 13, and 15 to 17.
Claims 1 to 3, 5 to 10, 12, 13 and 15 to 20 are rejected
pursuant to 37 CFR 1.196(b).
This decision contains new grounds of rejection pursuant
to 37 CFR § 1.196(b)(amended effective Dec. 1, 1997, by final
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