Appeal No. 2004-1815
Application No. 09/781,582 Page 14
claimed herein wherein the spout and mouth are parts of container
compartments having upper tapering portions that are assembled to
one another. On this record, we reverse the examiner’s § 102(b)
rejection of claims 38-40, 42 and 46 over Ness ‘289.
§ 103(a) Rejections
Regarding the examiner’s § 103(a) rejection of dependent
claims 41 and 43 over Ness ‘289 in view of Newarski, the examiner
does not explain how Newarski overcomes the deficiencies of Ness
‘289 with respect to method claim 38 from which claims 41 and 43
depend. It follows that we will not sustain the examiner’s
§ 103(a) rejection of claims 41 and 43 over Ness ‘289 in view of
Newarski on this record.
Concerning dependent claim 14, the examiner relies on Ness
‘289 in combination with Simmons as suggesting the claimed
subject matter. However, the examiner does not further explain
how the combination of Simmons with Ness ‘289 would have led one
of ordinary skill in the art to the subject matter of claim 1
from which claim 14 depends. Rather, the examiner seemingly
relies on the examiner’s position set forth in the § 102(b)
rejection of claim 1 over Ness ‘289, which we found unpersuasive
as discussed above. In this regard, we note that the examiner
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