Appeal No. 2005-1180
Application No. 09/791,298
E. Rejection of claims 6 and 10
Claims 6 and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Peiker and Cramer. Claim 6 reads as follows:
6. A carton as claimed in claim 5 wherein said scored lines define bendable
aperture flaps suitable to be bent inward.
Appellants argue that neither Peiker nor Cramer discloses scored lines defining bendable
aperture flaps suitable to be bent inward as required by claim 6. See Brief, p. 18. The
examiner, on the other hand, argues that Peiker discloses bendable flaps and for support points
to Figure 4, reference numeral 31. See Answer, p. 7.
The bendable flaps in Peiker referred to by the examiner are not in the first top wall of
the carton as required by claim 6. See 37 CFR § 1.75(c) (2004) (“Claims in dependent form
shall be construed to include all the limitations of the claim incorporated by reference into the
dependent claim.”). Nevertheless, as discussed above, Cramer discloses a meal carton
comprising scored lines or partial perforations in a top wall which outline aperture areas 24 as
required by claim 5. One of ordinary skill would have understood that aperture areas 24 could
be partially or completely detached from the top wall of the carton by bending or pushing
aperture areas 24 inward. Thus, the scored lines or partial perforations outlining aperture areas
24 in Cramer define bendable aperture flaps suitable to be bent inward as required by claim 6.
Appellants also argue that neither Peiker nor Cramer disclose an insulating
compartment. Brief, p. 18. We disagree. For the reasons set forth in section "A." above, Peiker
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