Ex parte FUTO et al. - Page 6

              Appeal No. 1999-1165                                                                      Page 6                 
              Application No. 08/753,174                                                                                       

              is no teaching in Vollers of installing the wrench upon the cap by moving it laterally so that                   
              the cap first passes between the legs, and we can perceive no reason why this would be                           
              necessary or desirable.  It appears clear to us that one or ordinary skill in the art would                      
              have recognized that the body of the wrench is intended to be slipped over the cap in an                         
              axial direction.   Moreover, the drawings suggest that the wrench is not capable of being                        
              opened to the extent that would be necessary to install it laterally, considering the                            
              significant difference between the width of the opening at cusps 20 and the diameter of the                      
              bottle cap.  Further in this regard, since the legs of the wrench must be rigid enough to                        
              allow the bottle cap to be clamped within the body portion, in the absence of evidence to                        
              the contrary, it would seem to be unlikely that the body would be of such a resiliency at its                    
              apex to allow it to open a distance sufficient to allow the cap to pass between the cusps.                       
                      For the reasons set forth above, we do not agree with the examiner that Vollers                          
              discloses all of the subject matter recited in claim 1 except for the engaging surfaces in the                   
              wrench body, in that it does not disclose or teach the construction required by the final                        
              seven lines of the claim.  This deficiency is not cured by further considering Moulin, Goss                      
              or Gilbert.                                                                                                      
                      The test for obviousness is what the combined teachings of the prior art would have                      
              suggested to one of ordinary skill in the art.  See, for example, In re Keller, 642 F.2d 413,                    
              425, 208 USPQ 871, 881 (CCPA 1981).  A prima facie case of obviousness is                                        

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