Appeal No. 2002-1818
Application 29/094,432
hexagonal appearance when viewed from the bottom of the carton.
Four separate top flaps with no connection at their side edges
and a liner inside the carton are also shown in the drawings.
The references of record relied upon by the examiner as
evidence of obviousness under 35 U.S.C. 103 are:
Luckett 2,176,912 Oct. 24, 1939
Zoss et al. (Zoss) 5,292,058 Mar. 8, 1994
The appealed design claim stands rejected under 35 U.S.C.
§ 103 as being unpatentable over Zoss in view of Luckett. In the
examiner’s opinion, Zoss discloses basically all the
characteristics of the claimed design with the only difference
residing in the configuration of the score lines on the front and
rear panels of Zoss’ package. To account for this difference,
the examiner turns to the container of Luckett (Fig. 3), urging
that it would have been obvious to a designer of ordinary skill
in the art at the time the invention was made “to have modified
the Zoss package by replacing it’s score line configuration
(elements 72f, 74f and 76f) with that of the score line
configuration (elements 31, 32 and 33) of the Luckett package”
(answer, page 3).1
1 Although not expressly stated, it is clear that the
examiner must also consider it to have been obvious to replace
the score line configuration (elements 72b, 74b and 76b) on back
3
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