Appeal No. 2006-0912
Application No. 10/081,575
that a functional limitation asserted to be
critical for establishing novelty in the
claimed subject matter may, in fact, be an
inherent characteristic of the prior art, it
possesses the authority to require the
applicant to prove that the subject matter
shown to be in the prior art does not possess
the characteristic relied on.
Here, the examiner has reason to believe that the prior art
pressurized beverage product dispenser is capable of performing
the claimed function. See the Answer, pages 6-8. The examiner
has found and/or taken official notice (the Answer, pages 6-8)
that:
Ash’s valve sealed to the container is “suitable to
dispense the beverage as an effervescent beverage to a
mouth of a consumer” because it was notoriously well
known that beer taps [such as that shown in Ash] have
been used to dispense beer directly into the mouth of a
consumer. Furthermore, even facets in a household
sink, contrary to Appellants[‘] belief[, is] “suitable
to dispense...to a mouth of a consumer” because faucets
have been used to dispense water into the mouth of a
consumer.
...
[Guardia’s] valve would be capable of dispensing [a
carbonated beverage] into a consumer’s mouth,
because...Guardia teach[es] [that] the containers are 2
or 3 liter carbonated beverage containers and [that]
the valve for dispensing [the same], as shown in Figure
4, has a similarly sized outlet as the bottle outlet.
Carbonated beverage containers that are 2 or 3 liters
in size were known [to] have outlets suitable to
dispense a beverage into the mouth of a consumer.
[Emphasis added.]
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