Appeal No. 2005-1180
Application No. 09/791,298
Significantly, claim 20 requires the self-heating meal to be contained in the first
compartment of the carton. The examiner does not address this limitation. See Answer, p. 9.
In any event, a review of Peiker by this panel reveals that the first compartment of the carton in
Peiker does not contain comestibles characteristic of a meal. Rather, Peiker discloses that an
open, central "third compartment" located between the first and second compartments
accomodates sandwiches, chips and the like. See col. 4, lines 39-44. On this record, it is not
apparent why one of ordinary skill in the art would have been motivated to incorporate the self-
heating meal of Pickard into the first compartment of the carton disclosed in Peiker. See In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992) (the examiner bears the
initial burden of presenting a prima facie case of unpatentability). Therefore, the rejection of
claim 20 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Peiker and
Pickard is reversed.
Claims 21-23, 26-28, 38-42 and 45-47 depend from claim 20 and stand or fall with the
patentability of claim 20. Therefore, the rejection of claims 21-23, 26-28, 38-42 and 45-47
under 35 U.S.C. § 103(a) as being unpatentable over the combination of Peiker and Pickard is
also reversed.
J. Rejection of claims 24, 29, 43 and 48
Claims 24, 29, 43 and 48 are rejected under 35 U.S.C. § 103(a) as being unpatentable
19
Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: November 3, 2007