Appeal No. 97-4168
Application 08/348,890
container, are more than merely statements of intended use.
These recitations are necessary to define appellant’s invention
and they bring life and meaning to the claimed subject matter.
Absent the disclosure of the present application, it is our
opinion that one of ordinary skill in the art would not have been
motivated to modify the container and metal cap arrangement of
Büdenbender ‘576 in light of the closure member of Hawkins so as
to arrive at the subject matter set forth in appellant’s claims 7
and 8 on appeal. Thus, the examiner's rejection of appellant's
claims 7 and 8 under 35 U.S.C. § 103 based on Büdenbender ‘576
and Hawkins will not be sustained.
We have also reviewed the patent to Mineo applied by the
examiner in the § 103 rejection of dependent claim 9. However,
we find nothing in this reference which would supply that which
we have noted above to be lacking in the basic combination of
Büdenbender ‘576 and Hawkins. Accordingly, the examiner's
rejection of claim 9 on appeal under 35 U.S.C. § 103 will
likewise not be sustained.
6
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