Appeal No. 2004-0117
Application 09/779,312
in the art to place a seal membrane over the opening of Fritz’
container to prevent drying of the contents. Also, the examiner
has not established that one of ordinary skill in the art would
have had a reasonable expectation of success in fastening Kubis’
peelable lid to the rim of the opening of Fritz’s container which
has no flange, or that, even though Fritz’s closed container is
airtight, one of ordinary skill in the art would have been led by
Fritz and Kubis to provide a flange on the opening of Fritz’s
container for attachment of a seal membrane. The examiner’s
argument that “[a] seal membrane can be attached to any upper
surface of a container rim so long as an adhesive is applied to
either of the seal membrane or the container rim” (answer,
page 7) is not persuasive because it is unsupported by evidence.
The examiner argues that “one of ordinary skill in the art
would provide a seal membrane as taught by Kubis to the container
of Fritz to prevent the contents from contamination or partial
removal by persons which are not the end user” (answer, page 7).
The examiner, however, has not established that Fritz and Kubis
would have led one of ordinary skill in the art to prevent
contamination or partial removal of Fritz’s shoe polish. The
examiner argues that obviousness can be based upon knowledge
generally available to one of ordinary skill in the art, see id.,
9
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