Appeal No. 2004-2007 Page 3
Application No. 10/014,838
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
The objective of the appellant’s invention is to provide a gauge for indicating the
amount of liquid remaining in a bottle that has a distinctive shape wherein the cross-
section varies along its height. Claim 1 recites a gauge having an edge shaped to
match the corresponding external surface of a bottle in a direction parallel to the bottle
axis and extending from the outside bottom of the bottle, and a scale extending along
the shaped edge and having scale spacing changing as a function of the change in
cross-sectional area of the bottle interior in the direction of the bottle axis, with the
scale beginning or ending measurement with the bottom of the bottle interior.
The examiner has rejected this claim under 35 U.S.C. § 103(a) as being obvious2
in view of the combined teachings of Carr and Marcussen. In arriving at this
conclusion, the examiner has found all of the subject matter recited in the claim to be
2 The test for obviousness is what the combined teachings of the prior art would have suggested
to one of ordinary skill in the art. See, for example, In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881
(CCPA 1981). In establishing a prima facie case of obviousness under 35 U.S.C. §103, it is incumbent
upon the examiner to provide a reason why one of ordinary skill in the art would have been led to modify a
prior art reference or to combine reference teachings to arrive at the claimed invention. Ex parte Clapp,
227 USPQ 972, 973 (Bd. Pat. App. & Int. 1985).
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Last modified: November 3, 2007