Appeal No. 2004-1304
Application 08/730,625
the noted benefits of each of the two types of utensils reflected
in the applied prior art into a single utensil. Given the
express notation on the “Too Hot” package that the safety spoons
therein are made of “Soft Plastic for Teeth and Gums,” we find
appellants’ argument that the safety spoons are made of “hard”
plastic material and thus would not have been suggestive of the
claimed subject matter even if combined with the “Soft Bite
Utensils” (brief, pages 40-41), to be unpersuasive. However, we
agree with appellants that the “Soft Bite Utensils” and the “Too
Hot” package do not teach or suggest use of a soft plastic
coating which comprises “polyvinyl chloride and a thermochromic
additive,” as specifically required in claim 6 on appeal.
Moreover, we find nowhere in either Paper No. 28 or the
examiner’s answer (Paper No. 32), where the examiner even
attempts to specifically address claims 6, 25 and 26 on appeal
based on the teachings of the “Too Hot” package in view of “Soft
Bite Utensils,” or provides response to appellants’ arguments on
pages 42-43 of the brief regarding those claims. Thus, in this
instance, the examiner has clearly not established a prima facie
case of obviousness with respect to dependent claims 6, 25 and 26
on appeal.
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