Appeal No. 2005-1180
Application No. 09/791,298
combination of Peiker, JP '628A and Pickard. Claim 56 is dependent on claim 55 and requires a
carton comprising a third compartment which contains packaged foods.
The examiner explains that food is contained in the third compartment of the meal
carton disclosed in Peiker. However, the food is not packaged. The examiner relies on the
teachings of Pickard to establish that it was known in the art to include packaged foods in meal
cartons. The examiner concludes that it would have been obvious to one of ordinary skill in the
art to incorporate the packaged foods disclosed in Pickard into the meal carton of Peiker to
provide better preserved and more appealing food for the consumer. See Answer, pp. 6-7.
Appellants have failed to establish otherwise. See In re Piasecki, 745 F.2d 1468, 1472, 223
USPQ 785, 788 (Fed. Cir. 1984) (“[a]fter a prima facie case of obviousness has been
established, the burden of going forward shifts to the applicant”). Therefore, the rejection of
claim 56 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Peiker, JP
'628A and Pickard is affirmed.
D. Rejection of claims 5 and 9
Claims 5 and 9 are rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Peiker and Cramer. Claim 5 reads as follows:
5. A carton as claimed in claim 2 further comprising scored lines in said
first top wall, said scored lines outlining an aperture area and being capable of
forming an aperture by cutting along said scored lines.
The examiner recognizes that the carton disclosed in Peiker has holes in the first top
wall of the first compartment rather than scored lines outlining an aperture area as required by
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