Appeal No. 98-2417
Application 08/570,894
Rudick to the invention in the Rudick patent clearly dictates
against any such removal, and if the structure within the
second compartment were removed, the very nature of the
container therein would be altered to the extent that such
container would not be capable of performing the same function
as before. Thus, we will not sustain the examiner's rejection
of claims 2 through 11 under 35 U.S.C. § 103 based on Rudick.
We will likewise not sustain the examiner’s rejection of
claim 11 under 35 U.S.C. § 103 as being unpatentable over
Rudick in view of Kim. It is again our opinion that the
examiner's
modification of Rudick in the specific manner posited in the
final rejection and examiner’s answer is based on the
hindsight benefit of appellant's own teachings and not on
anything fairly suggested by the applied references.
In summary, only the decision of the examiner rejecting
claims 1 through 10 under 35 U.S.C. § 102(b) as being
anticipated by Rudick is affirmed. All the other rejections
before us on appeal have been reversed. Thus, the decision of
the examiner is affirmed-in-part.
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