Appeal No. 2004-0117
Application 09/779,312
prevent the contents from contamination or partial removal by
persons which are not the end user. This is a well established
motivation in the art, particularly to ensure the safety and
integrity of products to be ingested by humans” (answer, page 8).
The examiner has not established that the food storage
containers disclosed by Tupper have therein, when they are sold,
contents to be protected before first use. Regardless, the
examiner has not established that Tupper’s rim is capable of
having Kubis’ peelable lid attached to it, or that Tupper and
Kubis would have fairly suggested, to one of ordinary skill in
the art, modifying Tupper’s container such that it has Kubis’
flange or another structure which would permit attachment of
Kubis’ peelable lid.
The examiner, therefore, has not carried the burden of
establishing a prima facie case of obviousness over the combined
teachings of Tupper and Kubis of the package claimed in the
appellants’ claim 5. Accordingly, we reverse the rejections of
claims 5 and 10 over Tupper in view of Kubis, and claims 6-9 and
12 over Tupper in view of Kubis and DeCoster.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1-4 over King
in view of Bowen, claims 5 and 10 over Fritz or Tupper, in view
12
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