Appeal No. 2004-1836 Page 5
Application No. 09/590,815
does teach that his container has "generally flat end walls 5 and 6," Saad does not
teach or suggest that the top end wall 5 is capable of self-supporting the container on a
planar surface for the reasons set forth by the appellant in the brief (pp. 6-7). A mere
possibility is not sufficient.
Since the claimed limitation "each of said top portion and said bottom portion
is relatively flat for self-supporting said dispenser on a planar surface" is not taught or
suggested by Saad, the examiner has not established that it would have been obvious
at the time the invention was made to a person of ordinary skill in the art to have
modified Saad to arrive at the claimed invention. Accordingly, the decision of the
examiner to reject claims 1 to 9, 12 to 16, 18 to 20, 24 and 25 under 35 U.S.C. § 103 is
reversed.
Claims 33 and 34
The appellant's argument (brief, p. 8) is that Saad and Burshtain do not teach or
suggest all of the elements claimed in claims 33 and 34 for the reasons stated
previously in regard to Claims 1 and 8. This argument is not persuasive since the
appellant's arguments for patentability of claims 1 and 8 are not germane to the issue of
patentability of claims 33 and 34. In that regard, the argued limitation that "each of said
top portion and said bottom portion is relatively flat for self-supporting said dispenser on
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