Appeal No. 2003-0102 Page 10
Application No. 09/543,439
view of Markert and Curry or the rejection of claims 5, 8-11, 27 and 30-33 as
unpatentable over Sansbury in view of Markert, Adamek and Curry.
Turning to the rejection of claim 7 as unpatentable over Sansbury in view of
Markert and Bemiss, we find nothing in the teachings of Bemiss which cures the above-
noted deficiency in the combination of Sansbury and Markert. It follows that we also
shall not sustain this rejection.
Bemiss, likewise, provides no teaching or suggestion which would overcome the
above-noted shortcomings of the combination of Sansbury in view of Markert and
Adamek. We thus shall not sustain the examiner’s rejection of claims 7 and 29 as
unpatentable over Sansbury in view of Markert, Adamek and Bemiss.
The examiner’s rationale in rejecting claims 9-11 as unpatentable over Markert in
view of Curry is that Curry teaches two flexible end caps and, thus, would have
suggested the provision of a second flexible closure on the container of Markert to
manufacture the container more easily (answer, page 5). As discussed above, we find
no teaching or suggestion in Curry of flexible end caps. Moreover, Markert teaches that
the single flexible membrane 20 provided therein acts to compact the product against
both the tubular body 12 and the opposite conventional metal cap 14 to rigidify the
container in these areas. The provision of a second flexible end cap in place of the
conventional metal cap 14 would undermine the rigidification at this location and would
necessitate the provision of a second overcap 30. We thus conclude that one of
ordinary skill in the art would not have been led by the teachings of Markert and Curry
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