Appeal No. 1999-2632
Application 08/707,097
Tieke et al. discloses all elements per claimed
invention with the exception of a plastic cover
acting as an actuating means. However, it would
have been obvious for a person with ordinary skill
in the art to supply such a cover because it
facilitates the actuation or spring back means for a
stem or follower means, as taught by Meshberg.
Furthermore Tieke et al. and Meshberg’s actuating
means are art recognized to be functionally
equivalent in providing spring back action. Thus
one of ordinary skill in the art would have found it
obvious to substitute [for] Tieke et al.’s spring
[the] Meshberg leaf spring (actuating cap). Such
modification of Tieke et al.’s device will also
reduce manufacturing cost by simplifying of the
actuation means [answer, pages 4-5, 7 and 9-10].
The mere fact that the prior art could be so modified,
however, would not have made the modification obvious unless
the prior art suggested the desirability of the modification.
In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed.
Cir. 1984). The reasons advanced by the examiner as to why
the proposed modification of the Tieke dispenser would have
been desirable are not well taken.
To begin with, the examiner has not explained, nor is it
apparent from the references, why Meshberg’s resilient
dome/cover would facilitate the “spring back” action of the
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