Appeal No. 2004-0915 Page 9
Application No. 09/919,469
We shall not, however, sustain the rejection of claim 5 as being unpatentable
over Spencer in view of Wareing. As pointed out by appellant on page 10 of the brief,
Wareing discloses a “snap-fit” cover 10, not a hinged connection as called for in claim
5, and we find no suggestion in the either Spencer or Wareing to provide any other type
of attachment of the cover to the container of Spencer. The examiner’s attempt on
pages 4 and 5 of the final rejection to read the top and bottom portions of the container
of claim 4 on the hingedly connected side portions of Spencer is untenable.
The rejection of claims 6 and 11, which depend from claim 5, rest in part on the
examiner’s attempt to read the claimed top and bottom portions of the container on the
hingedly connected side portions of Spencer’s container and likewise must fail. The
rejection of these claims is thus also reversed.
Nor shall we sustain the rejection of claim 9 as being unpatentable over Spencer
in view of Wareing. While Wareing teaches providing a gap in the shoulder 6 into
which the flange 11 of the cover 10 is snap-fit to facilitate removal of the cover portion
from the base section, this does not result in a gap between the cover and the base
portion and, even if provided on Spencer’s container, would not result in such a gap.
Quite simply, neither Spencer nor Wareing teaches or suggests providing such a gap at
the interface of the cover and the container. As discussed above, the examiner’s
attempt to read the top and bottom portions of claim 4 on the side portions of Spencer’s
container and hence the recited “gap between said top portion and said bottom portion”
on the gaps at the interface of shoulders 53 and 54 is unreasonable.
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