Appeal No. 2005-1729 7
Application No. 09/921,762
stack two crates in order to more efficiently use floor space by storing a plurality of crates
in a space occupied by one crate. Be that as it may, for the reasons already explained
above in our treatment of the examiner’s anticipation rejection of these same claims, we
conclude that the examiner has failed to set forth a prime facie case of obviousness.
Accordingly, the rejection of claims 1 through 4, 32 through 38 and 40 through 43 under 35
U.S.C. § 103(a) as being unpatentable over the APA will not be sustained.
The next rejection for our consideration is that of claims 1 through 6, 25 through 29, 32
through 38 and 40 through 43 under
35 U.S.C. § 103(a) as being unpatentable over the APA in view of Wise. In this instance,
the examiner asserts that “Re claim 1, 32 and 35, the admitted prior art [APA] discloses
the entire invention, but a modification can be made in view of the teachings of Wise”
(answer, page 7). In furtherance of the rejection, the examiner points to the gussets (77,
79, 81, 83, 85, 87, 89, 91, 84, 86, 88 and 90) of the bulk material container of Wise and
urges that the tapered portions of the gussets “establish a first portion of an inner surface
of the side wall at the first distance from the bottom surface is formed to reduce the
dimension of the crate opening in at least one selected area relative to a second portion of
the inner surface of the side wall at the first distance from the bottom surface so as to
provide a tighter fit with a container stacked thereabove” (answer, page 7). The examiner
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