Appeal No. 1997-3814 Page 6
Application No. 08/601,461
not sustain the examiner's rejection of claims 1 to 8 under 35
U.S.C. § 103. Our reasoning for this determination follows.
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of
obviousness is established by presenting evidence that would
have led one of ordinary skill in the art to combine the
relevant teachings of the references to arrive at the claimed
invention. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d
1596, 1598 (Fed. Cir. 1988) and In re Lintner, 458 F.2d 1013,
1016, 173 USPQ 560, 562 (CCPA 1972).
The appellant argues (brief, pp. 4-8) that the applied
prior art does not suggest the claimed subject matter. We
agree.
All the claims under appeal require a "push-up" type
package for a frozen confection having a plunger member with a
raised printing surface which can be used as a novelty ink
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