Appeal No. 2002-1099 8
Application No. 09/208,119
Further, the test for obviousness is not measured in terms of what is “within the level of
ordinary skill in the art.” Instead, there must be some teaching, suggestion or inference in
the prior art as a whole or some knowledge generally available to one of ordinary skill in
the art that would have led one of ordinary skill in the art to make the modification needed
to arrive at the claimed subject matter. See, inter alia, In re Fine, 837 F.2d 1071, 1074,
5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d
1044, 1052, 5 USPQ2d 1434, 1439 (Fed. Cir.), cert. denied, 488 U.S. 825 (1988). In the
present case, the examiner has identified no teaching, suggestion or inference in the
applied prior art or knowledge generally available to the ordinarily skilled artisan that would
have led said artisan to make the additional modification proposed by the examiner. For
this additional reason, the rejection of claims 20-23, 25-27, 29 and 34 as being
unpatentable over Hehn in view of Koizumi, Nakasuji, and Hagiwara cannot be sustained.
Rejection (3)
The examiner’s starting point for this rejection is Hagiwara. The examiner
concedes that Hagiwara lacks, among other things, a spine not extending beyond the
sidewall when the lid is in the closed position, as set forth in claim 18, or a flange
extending out from the sidewall at each end of the sidewall to the edge of the base, as set
forth in claims 20, or no portion of the spine extending beyond the flange as set forth in
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