Appeal No. 2004-1302
Application No. 09/789,757
We reach an opposite conclusion with respect to the
rejection of claims 16 and 19 as being unpatentable over Gelardi.
Even if it would have been obvious to select the claimed
materials for making Gelardi’s CD holder, the resulting holder
would not have a rigid boss in the well of the tray as called for
in base claim 1.
Turning to claims 40 and 43, these claims depend indirectly
from claim 26 and set forth details of the boss and tray. The
rejection of claims 40 and 43 as being unpatentable over Cheung
or Gelardi is not sustained because, for the reasons explained
infra in our new ground of rejection, the meaning of the
requirement of base claim 26 that the rosette has a thickness
less than a thickness of the tray is not clear. This reversal is
not based upon any evaluation of the merits thereof and does not
preclude the examiner’s advancement of a rejection predicated
upon the applied prior art against a definite claim.
Rejection (5)
Claims 1-5, 12-21, 26, 27, 29, 30, 35, 36 and 45 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over
Blanco in view of Wynalda.
Blanco, the examiner’s primary reference, is directed to a
container for receiving, packaging, and displaying flat articles
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