Appeal No. 2006-0912
Application No. 10/081,575
The appellants have not challenged this finding and/or official
notice taken by the examiner. Compare the Answer, pages 6-8 with
the Brief in its entirety. Thus, we concur with the examiner
that the claimed functionally defined dispenser encompasses those
structures shown in Ash or Guardia. On this record, the
appellants have not demonstrated that the dispensers of the type
described in Ash or Guardia are not capable of dispensing
effervescent beverages to a consumer’s mouth. In re Yanush, 477
F.2d 958, 959, 177 USPQ 705, 706 (CCPA 1973); In re Casey, 370
F.2d 576, 580, 152 USPQ 235, 238 (CCPA 1967); In re Otto, 312
F.2d 937, 939, 136 USPQ 458, 459 (CCPA 1963).
Thus, for the reasons set forth in the Answer and above, we
concur with the examiner that the prior art relied upon by the
examiner would have rendered the subject matter defined by claims
1 through 5, 7 and 10 through 14 anticipated within the meaning
of 35 U.S.C. § 102(b).
OBVIOUSNESS
Under Section 103, the obviousness of an invention cannot be
established by combining the teachings of the prior art
references absent some teaching, suggestion or incentive
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