Appeal No. 2003-0102 Page 6
Application No. 09/543,439
reply brief, that, taken in context, this more likely refers to the capability of the end caps
to be bent (in the sense of crimping) or snapped (in the sense of a snap ring, for
example) to fit snugly around the sides of the container to seal the ends and prevent
leakage. As for Curry’s disclosure of “laminated paper material” caps, while laminated
paper could, depending upon the particular materials and dimensions used, have
sufficient flexibility to meet the limitations of claim 1, inherency may not be established
by mere probabilities or possibilities. “The mere fact that a certain thing may result from
a given set of circumstances is not sufficient.” In re Oelrich, 666 F.2d 578, 581, 212
USPQ 323, 326 (CCPA 1981) (quoting Hansgirg v. Kemmer, 102 F.2d 212, 214, 40
USPQ 665, 667 (CCPA 1939)). In this instance, while the Caner and Kucherer patents
referred to by the examiner on page 9 of the answer evidence that laminated foil
membranes may be manufactured so as to flex under the application of vacuum forces,
these patents in no way establish that all laminated paper articles or, in particular, the
end caps 11 of Curry are made to so flex. We note, for example, that Curry’s tubular
support 9 is a “laminated paper structure” (column 6, line 38) and that it, unlike the liner
12, has not been characterized by Curry as flexible and would not be viewed by one
skilled in the art of vacuum packing as being free to move inward under the application
of vacuum as called for in claim 1.
Having concluded that Curry fails to disclose, either expressly or under the
principles of inherency, 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
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