Appeal No. 2004-1240
Application No. 09/742,691
required by claim 4.
We observe that on page 12 of the brief,
appellant argues that “the Declaration of Mr. Anders
states that there is no motivation to modify the prior
art to include the teaching of [Fischer]”. We have
reviewed the Anders Declaration and do not find such a
statement. For argument sake, however, the prior art
of Budny, for example, has a lid 22 having a wall
section 24 which is detachably secured along a line of
glue spots 26. Fischer teaches an equivalent means of
detachable securement (use of inserts).
In view of the above, we affirm the obviousness
rejection of claim 4.
IV. Rebuttal evidence
A prima facie case of obviousness is rebuttable
by proof that the claimed invention possesses
unexpectedly advantageous or superior properties.3 In
re Papesch, 315 F.2d 381, 386-87, 137 USPQ 43, 47-48
(CCPA 1963). Objective indicia of unobviousness can
be in the form of affidavits submitting evidence of
secondary considerations, and must be considered by
the examiner. See M.P.E.P. § 716. Such evidence of
secondary considerations includes proof of commercial
success of the claimed subject matter, a showing that
3 We review the rebuttal evidence with regard to the obviousness
rejections of record.
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007