Appeal No. 2003-0102 Page 9
Application No. 09/543,439
container from damage from the inward forces applied during vacuum packing.
Sansbury provides an inner liner which absorbs the forces, transmitting them only near
the ends which are rigidified by the end caps, while Markert provides a flexible end cap
which compacts the product against the tubular body and opposing end cap to thereby
rigidify the container. We find no teaching or suggestion in either Sansbury or Markert
to combine these approaches by providing a flexible end closure on the Sansbury
container as proposed by the examiner. We thus conclude that the combination of
Sansbury and Markert is insufficient to establish a prima facie case of obviousness of
the subject matter of claim 1 and shall not sustain the rejection of claim 1 or claims 2-4
and 6 which depend therefrom. We have also reviewed the additional teachings of
Adamek and find nothing therein which overcomes the shortcoming of the examiner’s
combination of Sansbury and Markert. It thus follows that we shall also not sustain the
rejection of claims 1-4 and 6 and claims 23-26, which also call for both a flexible liner
and a flexible end closure, as unpatentable over Sansbury in view of Markert and
Adamek.
In light of our conclusion, supra, that Curry fails to disclose flexible end closures
“being free to move inwardly against the product when vacuum is applied so as to
provide cushioning support to the product,” it follows that we find no suggestion in Curry
to provide two flexible end closures on the Sansbury container. Accordingly, we also
shall not sustain the rejection of claims 5 and 8-11 as unpatentable over Sansbury in
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