Appeal No. 1998-2314 Page 7
Application No. 07/902,957
dimensional representations of animate objects or characters in other fields would have
motivated one of ordinary skill in the art to modify the inflatable popcorn container of
Brandberg ‘045 in such a manner as to meet the terms of claims 1 and 15. We fail to
perceive any teaching, suggestion or incentive in the applied references which would have
led one of ordinary skill in the art to do so. From our perspective, the only suggestion for
modifying the microwave popcorn container of Brandberg ‘045 in the manner proposed by
the examiner is found in the hindsight afforded one who first viewed the appellants’
disclosure. This, of course, is not a proper basis for a rejection under Section 103. In re
Fritch, 972 F.2d 1260, 1264, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
It therefore is our conclusion that the combined teachings of the references applied
against claims 1 and 15 fail to establish a prima facie case of obviousness with regard to
the subject matter recited therein. This being the case, we will not sustain the rejection of
independent claims 1 and 15 or, it follows, of dependent claims 16, 18 and 19.
Independent claim 26 recites essentially the same subject matter as claims 1 and
15, except for specifying that the three-dimensional external shape be “a recognizable
character or article other than a bag or envelope.” The same rejection as was made
against claim 1 is applied against this claim, and it fails for the same reason as was
explained above with regard to claim 1. The rejection of claim 26 is not sustained.
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