Appeal No. 2001-2656 Page 11
Application No. 09/208,514
However, in the interest of judicial economy, we nevertheless shall act on the
standing double patenting rejections of the two independent claims, for it immediately is
clear to us that they are not sustainable.
Zakarin’s independent claims 1, 13 and 17 recite a carrying bag (or backpack)
having first and second storage compartments, the latter of which is configured to
receive headwear. Zakarin claims 1, 13 and 17 fail to set forth the recess in the
surface of the bag covered by an expandable material to permit an article received
therein to extend beyond the surface, as required by the claims in the application. The
examiner relies upon the teachings of Cunningham to modify Zakarin by providing a
compartment with a recess, and then upon those of Platts for the further modifcation of
providing the claimed expandable material. Even assuming, arguendo, that it would
have been obvious to provide the Zakarin bag with a compartment formed from a
recess in a surface in view of the teachings of Cunningham, for the reasons set forth
above with regard to the Section 103 rejections it is our conclusion that it would not
have been obvious in view of the teachings of Platts to further modify the Zakarin bag in
such a manner as to meet the expandable material requirement of application claims 1
and 20. With regard to claim 20, consideration of the added teachings of Pedersen
would not overcome this problem.
We therefore will not sustain the double patenting rejections of claims 1 and 20,
or of dependent claims 2-10.
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