Appeal No. 2005-0084
Application No. 09/835,726
“[b]oth of these photomicrographics were taken of containers
manufactured in accordance with the invention as claimed in the
present invention” (page 6 of principal brief, first paragraph).
Manifestly, in the absence of any comparative photographs of
Thomas’ vent openings, it cannot be reasonably concluded that the
claimed vent opening is in any way different than the vent
opening of Thomas. Moreover, even assuming for the sake of
argument, that it can be demonstrated that there is a structural
difference between the vent openings of the containers of
appellant and Thomas, appellant has not carried the burden of
demonstrating that such difference would have been a nonobvious
one.
We note that appellant has not argued the merits of the
various combinations of references with Thomas set forth by the
examiner.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is affirmed.
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