Appeal No. 2004-1836 Page 4
Application No. 09/590,815
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A case of obviousness is established by
presenting evidence that would have led one of ordinary skill in the art to combine the
relevant teachings of the references to arrive at the claimed invention. See In re Fine,
837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and In re Lintner, 458
F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
Claims 1 to 9, 12 to 16, 18 to 20, 24 and 25
The appellant argues that the applied prior art does not suggest the claimed
subject matter of claims 1 to 9, 12 to 16, 18 to 20, 24 and 25. We agree.
Claims 1 to 9, 12 to 16, 18 to 20, 24 and 25 under appeal recite a food and treat
dispenser comprising, inter alia, an enclosed container having a top portion, a central
portion and a bottom portion wherein "each of said top portion and said bottom portion
is relatively flat for self-supporting said dispenser on a planar surface." However, the
above-quoted limitation1 is not taught or suggested by Saad. In that regard, while Saad
1 This limitation was added to claims 1 and 8 in the amendment filed on May 9, 2003 (Paper No.
20). The appellant did not point out where in the original disclosure there was written description support
for this limitation. Our review of the original specification reveals no explicit support for this limitation. The
examiner should determine if there is implicit support from the original drawings for this limitation. If there
is no support in the original disclosure for this limitation, the examiner should make a rejection under
35 U.S.C. § 112, first paragraph.
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