Appeal No. 2004-0187 Page 5
Application No. 09/745,098
be adapted to be “the same shape” as that portion of the bottle, considering the
definition the appellants have provided for this terminology. As is particularly evident
from Figures 3 and 6, which depict the crown after crimping over the mouth of the
bottle, a space exists between the inner curved surface of the crown seal and the outer
surface of the mouth of the bottle to accommodate seal 16, which in our view supports
the appellants’ argument that the curved portion is not the “same shape as the mouth
contour.” This being the case, Leenaards fails to disclose or teach this feature of the
appellants’ invention and therefore the reference is not anticipatory of the subject
matter of claim 1.
The rejection of independent claim 1 and dependent claims 2-6 is not sustained.
We reach the same conclusion, for the same reason, with regard to independent
claim 7, which contains the same limitation, and dependent claims 8-12.
Claim 13, which depends from claim 7, stands rejected as being obvious2 in view
of the combined teachings of Leenaards and Ferngren. This claim adds to claim 7 the
requirement that the bottle mouth includes upper and lower portions with a fulcrum
therebetween, and Ferngren was being cited for teaching these features. First of all,
2The test for obviousness is what the combined teachings of the prior art would have suggested to
one of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
However, the mere fact that the prior art structure could be modified does not make such a modification
obvious unless the prior art suggests the desirability of doing so. See, In re Gordon, 733 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). The initial burden of establishing a basis for denying patentability
to a claimed invention rests with the examiner. See In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984).
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