Appeal No. 2004-0117
Application 09/779,312
Cir. 1996); In re Ochiai, 71 F.3d 1565, 1570, 37 USPQ2d 1127,
1131 (Fed. Cir. 1995).
Although, as argued by the examiner, Bowen’s closure, unlike
that of King, permits the contents of the container to be removed
without completely removing the lid, the examiner has not taken
into account the disclosed benefits of the particular
characteristics of King’s closure and explained why one of
ordinary skill in the art would have been motivated by King and
Bowen to forgo these benefits or to modify Bowen’s closure such
that these benefits are obtained. That is, the examiner has not
explained why the mere fact that the lid of Bowen’s welding rod
container can be opened without the entire closure being removed
would have led one of ordinary skill in the art to use Bowen’s
closure on King’s foil-sealed container, the exemplified uses of
which are for containing medicine, coffee and drinks, or to
modify Bowen’s closure such that it is provides the benefits
desired by King.
With respect to the reasonable expectation of success in
combining King and Bowen, the examiner argues that “[t]he top
portion of the base portion [of Bowen] would be spaced from the
seal member as the base of the King closure is already spaced
from the seal member as seen in figure 2" (answer, page 6).
6
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