Appeal No. 2005-1180
Application No. 09/791,298
USPQ 716, 718 (CCPA 1965) (arguments in the brief do not take the place of evidence in the
record).
Finally, appellants argue that neither Peiker nor Cramer disclose a "meal carton."
Rather, appellants argue that Peiker and Cramer disclose "serving trays" which are designed to
carry food. See Brief, p. 16.
This argument is not persuasive. Appellants have failed to distinguish the structural
limitations imparted by the term "meal carton" from the structural limitations imparted by the
term "serving tray." Furthermore, as explained in In re Prater, 415 F.2d 1393, 1404-05, 162
USPQ 541, 550-51 (CCPA 1969), during examination claims are to be given the broadest
reasonable interpretation consistent with the specification. The examiner points out that the
broadest reasonable interpretation of the term "meal carton" includes any container that can
support food items, and both Peiker and Cramer teach this concept. See Answer, p. 14.
Appellants have failed to establish otherwise.
For the reasons set forth above, appellants have failed to rebut the prima facie case of
obviousness set forth by the examiner on page 7 of the Answer. See Piasecki, 745 F.2d at 1472,
223 USPQ at 788 (“[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 5 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Peiker and Cramer is affirmed. Since
claim 9 stands or falls with the patentability of claim 5, the rejection of claim 9 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Peiker and Cramer is also affirmed.
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