Appeal No. 2003-0102 Page 4
Application No. 09/543,439
the brief and reply brief (Paper Nos. 17 and 20) for the appellants’ arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants’ specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determinations which follow.
The anticipation rejection
Each of independent claims 1 and 9 recites at least one flexible end closure
secured to at least one of the opposed ends of the tubular body of the container, the at
least one flexible end closure “being free to move inwardly against the product when
vacuum is applied so as to provide cushioning support to the product.” The examiner
regards this limitation as merely an intended use (answer, page 3) and further points
out that Curry (column 7, lines 1-2) discloses caps 11 made of “deformable plastic or
laminated paper materials,” which the examiner contends are capable of being moved
inward when subjected to vacuum pressure.
Anticipation is established only when a single prior art reference discloses,
expressly or under the principles of inherency, each and every element of a claimed
invention. RCA Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221
USPQ 385, 388 (Fed. Cir. 1984). In other words, there must be no difference between
the claimed invention and the reference disclosure, as viewed by a person of ordinary
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