Appeal No. 98-0070
Application 29/019,900
"Rosen" reference cannot stand.
Unilever shows four square compartments, and the Examiner
did not regard it as the basic "Rosen" reference for this
rejection. Thus, we need not address that alternate scenario.
Our discussion is limited to the rationale on which the rejection
was actually based. We decline to introduce a new or alternate
rationale in the first instance on appeal. Also, it should be
noted that the examiner has failed to account for the appearance
of the transverse partition between the compartments of the
claimed design.
For the foregoing reasons, we do not sustain the rejection
based on Allen and Unilever.
The rejection based on Miscoe
We reject the appellant’s argument that the examiner
rejected the claimed design based on a single top plan view
illustrated in Miscoe. The entire description pertaining to the
embodiment corresponding to Miscoe’s Figure 3 was the basis of
the examiner’s rejection. Note that in column 2, lines 1-3 and
9-18, Miscoe contains discussions about the Figure 3 embodiment.
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