Appeal No. 2004-1815
Application No. 09/781,582 Page 20
flow as desired and the mouth opening for the dry food container
is large enough to allow for the flow of dry cereal therethrough.
See, e.g., column 6, lines 13-43 of Ness ‘289. Consequently, we
agree with the examiner that it would have been obvious to one of
ordinary skill in the art to determine a workable range of sizes
for the dry cereal opening and the milk opening of Ness ‘289
including sizes for the cereal opening that are at least three,
at least four (claim 50) or at least five (claim 51) times
greater than the size of the milk compartment opening. See In re
Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA
1980)(“[D]iscovery of an optimum value of a result effective
variable in a known process is ordinarily within the skill of the
art.”); In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA
1955)(“[W]here the general conditions of a claim are disclosed in
the prior art, it is not inventive to discover the optimum or
workable ranges by routine experimentation.”). Appellants’ focus
on the openings of compartments (86) and (88) of Ness ‘289
without the lid (84) in place is not persuasive because that is
not the basis of the rejection. Rather, the examiner relies on
the embodiment of Figure 6 with the lid (84) in place, which the
claim language does not preclude. Concerning the claimed
minimum relative size differential of the openings that are
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