Appeal No. 2004-1815
Application No. 09/781,582 Page 13
the subject matter of rejected claims 1-9, 16-18, 47 and 48 than
Ness ‘561 is. Consequently, we reverse the examiner’s § 102(b)
rejection of claims 1-9, 16-18, 47 and 48 over Ness ‘561 because
the anticipation rejection over Ness ‘289 is subject to the same
deficiencies as discussed above with respect to the examiner’s
rejection of claim 1 as anticipated by Ness ‘561.
Concerning the examiner’s separate § 102(b) rejection of
method claims 38-40, 42 and 46 over Ness ‘289, we note that those
method claims require, inter alia, the provision of first and
second compartments tapering at an upper portion thereof and
steps of covering the spout with a seal separately from the mouth
and covering the mouth and seal with a cover. Here, the examiner
has not fairly addressed where Ness ‘289 describes covering a
sealed spout of a tapered first compartment with a cover that
also covers the mouth of a second tapered compartment, as claimed
by appellants. In this regard, we note that the Figure 6
embodiment of Ness ‘289 includes a spout (96) for the container
lid (84) and describes a cap for sealing the dry food opening, as
referred to by the examiner. However, the examiner has not
discharged the burden of explaining where Ness ‘289 specifically
describes the Figure 6 embodiment as including a step of covering
any mouth and spout seal with a cover let alone in a method as
Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: November 3, 2007