Appeal No. 2001-0199
Application 09/179,813
As we have affirmed the anticipation rejection for claims 20-26, and 28-29, and
anticipation is the “ultimate or epitome of obviousness,” In re Kalm, 378 F.2d 959, 962,
154 USPQ 10, 12 (CCPA 1967), we therefore summarily affirm the obviousness
rejection of these claims.
As regards claim 27, which the Appellants have argued separately, the Examiner
states that Breitler teaches containers having a diameter to height ratio of 4:1,
preferably 3.7:1 to 3.2 to 1. The Examiner notes that, absent some demonstrated
criticality or unexpected results, it would have been obvious to one of ordinary skill in
the art to adjust the diameter to height ratio based on the dimensions of the object to be
packaged (Examiner’s Answer, page 4, lines 9-14).
The Appellants assert that the Examiner has conceded that the ratio of diameter
to height of 2-3 is not shown in the reference and this diameter represents a “significant
advantage of the present invention over the teaching of the [Breitler] patent” (Appeal
Brief, page 10, lines 9-10).
Other than this conclusory statement, the Appellants have provided us with no
evidence as to why this dimension is critical or such an advantage. We agree with the
Examiner that the adjustment of this dimension from the height to diameter ratio
disclosed in Breitler of preferably from 1:3.7 to 1:3.2 (column 7, lines 1-2) to the claimed
ratio of diameter to height of 2-3 in claim 27 is the adjustment of a result-effective
variable (in this instance, fitting the packaging to the object to be packaged). The
discovery of an optimum value of result effective variable in a known process is
ordinarily within the skill of one of ordinary skill in the art. See, e.g. In re Boesch, 617
F.2d 272, 277, 205 USPQ2d 215, 219 (CCPA 1980).
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