Ex parte MUELLER - Page 6




          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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