Appeal No. 1999-1972 Page 8
Application No. 08/807,780
The obviousness issue
We will not sustain the rejection of claims 5 and 10
under 35 U.S.C. § 103.
The test for obviousness is what the combined teachings
of the references would have suggested to one of ordinary
skill in the art. See In re Young, 927 F.2d 588, 591, 18
USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d
413, 425, 208 USPQ 871, 881 (CCPA 1981).
We agree with the appellants' argument (brief, pp. 9-10)
that the combined teachings of Dickhut and Tanaka would not
have rendered it obvious to have arrived at the invention as
recited in claims 5 and 10. In that regard, the applied prior
art does not teach or suggest that an aperture for receipt of
a candy sucker stick include an "expandable sleeve" as recited
in claims 5 and 10. Contrary to the examiner's position
(answer, p. 12), the claimed "expandable sleeve" is not
readable on part of the flexible tube 12 of Dickhut since to
meet the limitations of claim 1, the flexible tube 12 of
Dickhut itself defines the aperture and thus there is no
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