Appeal No. 2002-1533
Application No. 09/055,377
changes phase to a liquid. This would act as a disincentive for
modifying Zimmerman in the manner proposed because a modification
that renders the modified prior art unsatisfactory for its
intended purpose would not have been obvious. See Tec Air Inc.
v. Denso Mfg. Michigan Inc., 192 F.3d 1353, 1360, 52 USPQ2d,
1294, 1298 (Fed. Cir. 1999); In re Gordon, 733 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). Finally, because neither
one of the applied references recognizes the problem solved by
appellant2 in locating the upper end of the inner vessel in a
recess spaced from the lip of the outer shell, it is problematic
that the proposed modification would result in the subject matter
of claim 17 (i.e., a recess spaced from the lip of the outer
shell and a rim of the inner vessel spaced from said lip for
preventing contact between the inner vessel and the mouth of a
consumer of liquid from the receptacle).
For these reasons, we will not sustain the rejection of
claim 17, or claims 18, 26-28 and 35-38 that depend therefrom, as
being unpatentable over the combination of Zimmerman and Myers.
2See page 10, lines 15-22, of appellant’s specification,
wherein it is stated that locating the upper end of the inner
vessel below the lip of the outer shell prevents the lips of a
consumer from contacting the highly thermally conductive inner
vessel when the consumer drinks from the receptacle.
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