Appeal No. 2000-2045 Page 5
Application No. 09/206,253
contacting a removable cap, at least a portion of the sides, and the bottom, as recited in
claim 15. From our perspective, however, Bates discloses a medical container having the
required structure, and if one were to carry out the examiner’s proposed modification, that
is, wrap a tamper-evident label completely around the top, sides and bottom of the Bates
container, the result would meet the terms of the claim. Another argument is grounded in
the proposition that the failure of Bates to utilize the teachings of Cornish, which were
available in the art for several years prior, supports a conclusion that no suggestion to
combine the references exists (Brief, page 6). We do not agree. There could be many
reasons why Bates chose to utilize two short tamper-evident labels rather than one label
that completely wraps around the container, which are not explicitly set forth in the
reference. However, Bates does not exclude using the single wrap-around label, and
therefore the issue is whether one of ordinary skill in the art would have been motivated to
do so. To agree with the appellants’ theory would mean that it never would be proper to
modify a reference in view of the teachings of an older reference, and that is not in
accordance with the guidance provided by our reviewing court for evaluating the issue of
obviousness.
Another contention by the appellants is that the references do not recognize that
enhanced tamper evidency could be provided for a medical container by wrapping the
label completely around the container (Brief, page 6). It is true that Bates does not teach
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