Appeal No. 1999-1567
Design Application 29/035,428
the threaded neck is slightly different in Bourcart, and the
claimed design has a hole pattern in the closure of the
opening which is visible in Appellant's figure 4. Although
the Examiner has not addressed these differences, since the
differences have not been argued, they will not be addressed.
Bourcart does not disclose a well in the bottom of the
vial 40 having a diameter and depth to receive the tubular
mouth and cap of a like-shaped container. Instead, the
recess 51 is just deep enough (one-sixteenth to one-eighth of
an inch, col. 3, lines 48-50) to engage the projection 49 on
one of the cylindrical boxes 28-31 so the assembled containers
will remain in stacked relation and will not slide relative to
one another.
The Examiner's position is (EA3): "It is noted that
there is a bottom well in the reference to Bourcart and to
merely provide straight walls as taught by Stolte would [have]
be[en] obvious. To further enlarge the well as Appellant
argues his claimed article shows would [have] be[en] an
obvious design expedient. In re Stevens, 81 USPQ 362." See
also EA4.
Stolte discloses a container with a short upstanding
circular neck 16 and closure member 17 which does not detract
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