Appeal No. 2005-1180
Application No. 09/791,298
preferred method of using the claimed invention, there is no reason to believe that a heating
container from a self-heating meal assembly could not have been disposed through and held by
the aperture in the top wall of the first compartment in the carton of Peiker.7
Likewise, the recitation "which had been heated in the first compartment" is a preferred
method of using the claimed invention. As discussed above, the heating container in JP '628A
contains a pre-packaged meal and is heated in a microwave. The examiner indicates that the
heating container disclosed in JP '628A could have been heated in a microwave in the cardboard
carton of Peiker. See Answer, p. 6. Appellants have not challenged this finding.
For the reasons set forth above, the rejection of claim 50 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Peiker and JP '628A is affirmed. Since claims 51-
55 stand or fall with the patentability of claim 50, the rejection of claims 51-55 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Peiker and JP '628A is also affirmed.
C. Rejection of claim 56
Claim 56 is rejected under 35 U.S.C. § 103(a) as being unpatentable over the
7We further note that the preamble of claim 50, reciting "[a] self-heating meal assembly,"
does not give life and meaning to the claim, especially since the claim fails to recite a heating
means. Cf. Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA 1951) (Court
concluded that preamble reciting "[a]n abrasive article" gave life and meaning to count reciting
"[a]n abrasive article comprising abrasive grains and a hardened binder...").
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