Appeal No. 2003-0104 Page 7
Application No. 09/659,792
Claims 7, 9 and 15
The appellant's argue (brief, p. 5; reply brief, p. 2) that there is no basis to
conclude that Pulli's sleeve 34 for supporting cups has a closed bottom. We agree.
The examiner's position (answer, p. 4) that Pulli's sleeve 34 inherently has a closed
bottom is without support. The examiner correctly points out that claim 1 of Pulli recites
"a cup sleeve attached to said outer layer, said cup sleeve being a pocket completely
external to said body section." However, we disagree with the examiner that Pulli's use
of the term "pocket" in describing the cup sleeve implicitly requires a closed bottom.
Thus, the claimed pocket having a closed bottom is structurally different than the sleeve
34 on Pulli's insulated container.
Since all the limitations of independent claim 7 and claims 9 and 15 dependent
thereon are not met by Pulli for the reasons set forth above, the decision of the
examiner to reject claims 7, 9 and 15 under 35 U.S.C. § 102(e) is reversed.
The obviousness rejection
We will not sustain the rejection of claims 3, 4, 6, 8 and 10 to 13 under 35 U.S.C.
§ 103 as being unpatentable over Pulli in view of Hussain.
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