Appeal No. 2004-1815
Application No. 09/781,582 Page 10
fashion.” In other words, the examiner has not fairly
established that appellants’ specification reflects appellants
clear attempt to be their own lexicographer such that the
specification passage in question requires that any configuration
of tube openings that permits dispensing two consumable products
in close proximity to each other is an assembly that must include
tubes in a side-by-side relationship with abutting openings
(spout and mouth). The examiner’s position is simply untenable
on this record.
Consequently, the examiner has not made out a prima facie
case of anticipation by furnishing a reasonable explanation of
how Stegath describes each and every limitation of the rejected
claims. It follows that we will not sustain the examiner’s
§ 102(b) rejection of claims 1, 4-9, 13, 16 and 48 over Stegath.
§ 102(b) Rejection over Ness ‘561
Each of rejected claims 1-12, 16, 17, 19 and 48 requires 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. Claim 1 and the claims depending thereon further require
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