Appeal No. 2002-1818
Application 29/094,432
like that claimed in the present application would not have made
the substitution posited by the examiner, because such a
modification would greatly change the overall curved and geodesic
appearance of the Zoss package into a planar angular design with
straight borders, thereby changing the overall appearance of the
top, bottom, front and back, and the sides of the Zoss package,
i.e., changing nearly every element of Zoss’ package (brief,
pages 7-8). In addition, appellant argues that the modification
proposed by the examiner is an inappropriate modification of the
Zoss package because Zoss “teaches away” from any such
modification of the score line configuration therein (brief pages
9-11 and reply brief, pages 4-6).
Dealing with the Rosen reference issue first, we note that
the only showing of the expanded package of Zoss is found in
Figure 1 of that patent, which appears to be a top, front
perspective view of the package in its expanded configuration.
Apparently, from this view alone the examiner contends that the
package of Zoss “discloses basically all the characteristics of
the claimed design” (answer, page 4), with the “only difference”
residing in the configuration of the score lines on the front and
rear panels of Zoss’ package. The examiner then concludes that
the design characteristics of Zoss satisfy the Rosen requirement
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