Appeal No. 2005-1180
Application No. 09/791,298
support for DeWitt, he has the burden of showing that penetration of silicon oxide layer into
silicon body inevitably occurs when the process steps are followed). Furthermore, the claims
do not specify the degree of insulation provided by the "insulating first compartment."
Peiker discloses that each hole in the first compartment receives and supports a
container charged with either a hot or cold drink. See col. 4, lines 32-35. In use, the hole is at
least partially closed by the container, and the paperboard inherently provides some degree of
insulation to the portion of the container received in the first compartment. See Figures 1 and 3
of Peiker. Therefore, contrary to appellants' arguments, the holes in the first compartment of
Peiker do not prevent the cardboard carton from insulating a container but rather facilitate such
insulation.
For the reasons set forth above, we agree with the examiner that Peiker inherently
describes an "insulating first compartment."4 Therefore, the rejection of claim 1 under 35
U.S.C. § 102(b) as being anticipated by Peiker is affirmed. Since claims 2-4, 7 and 8 stand or
fall with the patentability of claim 1, the rejection of claims 2-4, 7 and 8 under 35 U.S.C.
§ 102(b) as being anticipated by Peiker is also affirmed.
B. Rejection of claims 50-55
4 We further note that the preamble recites “[a] carton for storing a self-heating meal
assembly.” This language is merely a statement of intended use and fails to patentably
distinguish the claimed carton from the carton disclosed in Peiker. See In re Paulsen, 30 F.3d
1475, 1479, 31 USPQ2d 1671, 1673 (Fed. Cir. 1994) (the preamble of a claim does not limit the
scope of the claim where it merely states a purpose or intended use).
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