Appeal No. 98-2417
Application 08/570,894
pull tab clearly does not obstruct the opening to the second
enclosure. This pivoting movement of the pull tab thus
permits selective access into the second enclosure. The
examiner’s position as explained on page 6 of the answer that,
when in the horizontal position, the pull tab "can be pivoted
to extend radially inwardly to obstruct the second
opening," is based on total speculation and seems to mistake
rotation of the pull tab in a horizontal plane for pivoting of
the pull tab as discussed above, which it is not.
With regard to the examiner’s rejection of claims 2
through 11 under 35 U.S.C. § 103 as being unpatentable over
Rudick, we do not agree with the examiner that it would have
been obvious to one of ordinary skill in the art to remove the
diaphragm and the separator from the second compartment of
Rudick, while retaining the second compartment for holding a
removable product, prize or object, since such a modification
of the reference would clearly destroy the Rudick reference
for its intended purpose of providing a self-cooling
container. While it is true that in In re Karlson, 311 F.2d
581, 584, 136 USPQ 184, 186 (CCPA 1963) the Court stated that
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