Appeal No. 2005-1013
Application 09/767,155
Moreover, although the examiner has expressly noted that the
old type container/lid of Perry does not teach or suggest an
indented portion surrounded by the score line, we find nothing in
the stated rejection which specifically addresses this
limitation, no reference to where it might be found in the
secondary patent to Neiner, and no indication of a reason why one
of ordinary skill in the art at the time of appellants’ invention
would have found it obvious to modify the clearly different lid
of Perry to include any such feature. In that regard, we note
that the only structure located inside the score line of Perry is
the raised boss (201) which is used during the second step of the
opening operation therein (see col. 11, lines 24-25).
Since the examiner has not established that the differences
between the subject matter sought to be patented and the prior
art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having
ordinary skill in the art, we will not sustain the examiner’s
rejection of claims 1 through 7 under 35 U.S.C. § 103(a).
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