Appeal No. 2004-1419
Application 09/733,041
in a manner that would arrive at the nozzle (claim 1), dispenser
head (claim 11) and aerosol receptacle (claim 13) defined in
appellant’s claims on appeal. Moreover, we note that the
examiner has not even attempted to explain how or why, based on
the teachings of Burke, one of ordinary skill in the art would
have found it obvious at the time of appellant’s invention to
select the many different variables involved in a manner so as to
arrive at the particular nozzle defined in appellant’s claims on
appeal.
Since the examiner has failed to make out a prima facie case
of obviousness, it follows that we will not sustain the rejection
of claims 1 through 39 under 35 U.S.C. § 103(a) based on Burke.
In accordance with our discussion supra of the various
rejections on appeal, we note that the only rejection sustained
is that of claim 39 under 35 U.S.C. § 112, second paragraph.
Thus, the decision of the examiner is affirmed-in-part.
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