Appeal No. 2002-1147 Page 5
Application No. 09/305,799
Obviousness rejection based on Jenkins alone
We will not sustain the rejection of claims 1, 2 and 6 to 15 under 35 U.S.C. § 103
as being unpatentable over Jenkins.
In this rejection, after setting forth the pertinent teachings of Jenkins, the
examiner ascertained3 (brief, p. 4) that
Jenkins meets all claimed limitations except for: (1) the adhesive at
portions 46 and 48 being confined to the corner portions of the minor flaps
extending partially toward the opposed edges and the minor flaps as set forth in
claims 1, 9 and 10 and (2) the adhesive portion at 70 is confined to the corners
of the first major flap 24 as set forth in claims 8, 9, and 10.[4]
The examiner then concluded that such differences would have been obvious to a
person of ordinary skill in the art since such changes would be within the level of
ordinary skill in this art.
In this rejection, the examiner has not set forth any evidence of any suggestion,
teaching, or motivation as to why it would have been obvious at the time the invention
was made to a person of ordinary skill in the art to have modified Jenkins to arrive at
the claimed invention. Accordingly, the examiner has not presented a prima facie case
3 After the scope and content of the prior art are determined, the differences between the prior art
and the claims at issue are to be ascertained. Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ
459, 467 (1966).
4 The examiner did not ascertain the differences between Jenkins and independent claim 15.
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