Appeal No. 2001-2537 Page 5
Application No. 08/802,472
educating pedestrians about safety awareness with Agapiou’s
container in the shape of a flat tire.
In view of the foregoing, we will not sustain the examiner’s
rejection of claim 5 under 35 U.S.C. § 102(b).
We turn next to the examiner’s rejection of claims 8 to 15
and 17 to 31 under 35 U.S.C. § 103 as being unpatentable over
Agapiou. Recognizing that Agapiou does not disclose, for
example, that the package thereof may take the form of any of the
various replicas recited in claims 8 to 15 and 24 to 26, the
examiner concludes:
It would have been obvious to one having
ordinary skill in the art at the time of the
invention to modify the Agapiou reference by
having the package resemble a particular ball
. . .since a person of ordinary skill in the
art at the time of the invention would
provide a package with an article inside to
resemble objects useful to the target
consumer(s) who would purchase these items.
It is notoriously well known to place rain
gear or any other article, for that matter,
inside a package. Further it is also well
known to construct the package to resemble a
familiar symbol to the target consumer.
[answer at page 4]
We do not agree. In our view, Agapiou does not disclose or
suggest any of the shapes for the package called for in claims 8
to 15, 24 to 26 and 31. On this basis alone, the § 103 rejection
of these claims based on Agapiou cannot be sustained. As to the
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