Appeal No. 2005-1294
Application No. 09/785,100
This interpretation is consistent with the examiner’s
determination at page 10 of the Answer that the claimed “[b]ottle
carrier refers to any hypothetically designed bottle carrier
. . . . ” See also the Brief, page 3, referring to the
examiner’s interpretation regarding “hypothetical bottle
carriers.” Any “hypothetical bottle carriers” also include the
conventional ring carrier shown at pages 3 and 4 of the Request
for Rehearing. Having interpreted the claims in that manner, we
found at pages 8 through 10 of the Decision that the structures
of the prior art crates relied upon by the examiner appear to be
identical or substantially identical to those included in the
claims. In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429,
1432 (Fed. Cir. 1997); In re Best, 562 F.2d 1252, 1255, 195 USPQ
430, 433-34 (CCPA 1977). In other words, the claimed functional
limitations relating to intended use of a bottle carrier do not
patentably distinguish the display opening size and internal
shape of the claimed crates from those of the prior art crates
since the claims on appeal do not limit the structure or shape of
the type of a bottle carrier employed. Thus, consistent with the
holding of Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432
referred to at page 8 of our Decision, we have properly shifted
the burden to the appellant to distinguish the structures of the
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