Appeal No. 1999-2779
Application No. 08/859,763
disagree. The examiner relies upon the rationale articulated
in In re Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 9 (CCPA 1975).
However, Kuhle makes clear that if the differences between the
prior art and the invention solve a stated problem, the
differences can not be considered a mere design choice. In
this instance, the claimed subject matter clearly solves the
stated problem of inadvertent spiking of the container walls.
This problem is discussed in several places in appellants'
specification. Accordingly, we must hold that the distance
limitation solves a stated problem, and can not be regarded as
a mere design choice. We have also considered the Steer
reference for all it teaches or suggests and find therein
nothing to cure the deficiencies of Scheifel. Therefore, the
examiner has not established the prima facie obviousness of
any claim on appeal.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
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