Appeal No. 2004-1815
Application No. 09/781,582 Page 8
However, as argued by appellants in the reply brief (page
6), even if the here claimed spout and mouth were considered to
correspond to the component parts of Simmons as related by the
examiner in the answer3, that construction of the device of
Simmons relative to the claimed method does not set forth where
in Simmons there is a description of “covering the mouth and the
seal with a cover” (claim 38). We agree with appellants.
Consequently, on this record, we reverse the examiner’s § 102(b)
rejection of claims 38 and 44-46 over Simmons.
§ 102(b) Rejection over Stegath
All of the so rejected claims require a container including,
inter alia, a first compartment tapering at an upper portion to
form a spout and a second compartment tapered upper portion
forming a mouth. The first and second compartments are in a side
by side configuration such that the mouth abuts the spout.
3 In the final rejection, the examiner maintained that the
cap (item 57, fig. 2) of Simmons corresponds to the cover used in
the covering step of appellants. That position is also flawed as
pointed out by appellants in the brief. Indeed, it was based on
a construction of Simmons for which appellants noted the
possibility that Simmons could even have an abutting mouth and
spout and yet not describe the claimed method for the other
reasons set forth in the brief.
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