Appeal No. 1998-2314 Page 6
Application No. 07/902,957
the basis of the foregoing, the examiner concludes that it would have been obvious to
modify the Bandberg ‘045 container to a shape and with a graphic design that imparts “a
character simulation.” Cited in support of this theory are Hirtzler (container of cardboard
shaped like a baseball for candy or coin), Reese (lamp covering that can be inflated to
simulate a character such as Santa Claus), Burkes, Clark and Miller (inflatable toys such
as Santa Claus and animals), Panzer (paper bag with face image operated by the user’s
hand), and Stoner and Walker (wrappings for candy). Finally, the examiner opinion that the
prior art is replete with many arrangements of panels for forming microwave popcorn
containers.
Neither Brandberg ‘045, the primary reference nor, for that matter, any other of the
applied prior art references, discloses a container in which the cooking of a food
substance therein causes the container to expand into the three-dimensional
representation of an animate object, much less disclosing a microwave popcorn container
that does so, and none teaches that graphics be placed on the outside of such a container
to combine with the three-dimensional shape in the representation. It is axiomatic that the
mere fact that the prior art structure could be modified does not make such a modification
obvious unless the prior art suggests the desirability of doing so. See In re Gordon, 733
F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). The examiner has provided no
evidence in support of his conclusion that the presence of containers having three-
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