Appeal No. 2005-0944 Application No. 09/941,377 application of the requirement for a showing of the teaching or motivation to combine prior art references.”) For these reasons, we cannot uphold the examiner’s 35 U.S.C. § 103(a) rejection of appealed claims 1 and 2 as unpatentable over Cox in view of Konietzki. The examiner’s rejection of appealed claims 3, which is directed to an apparatus, is another matter. As we discussed above, Cox discloses an apparatus including a pressurized container capable of dispensing a foam composition in the form of a string, which may include perfumes (i.e., a scented chemical composition). While Cox does not disclose the use of the prior art apparatus for hunting, this does not defeat the examiner’s rejection because the prior art apparatus and the claimed apparatus are structurally identical. Cf. In re Bigio, 381 F.3d 1320, 1326, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004); In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997); In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962); In re Wolfe, 251 F.2d 854, 855, 116 USPQ 443, 444 (CCPA 1958); In re Hack, 245 F.2d 246, 248, 114 USPQ 161, 162 (CCPA 1957). 7Page: Previous 1 2 3 4 5 6 7 8 9 10 NextLast modified: November 3, 2007