Appeal 2006-1531
Application 10/645,226
adversely effect the desire of Davis to furnish a container and closure with a
sealing position removed from the mouth of the container. See Ex parte
Hartmann, 186 USPQ 366, 367 (Bd. App. 1974).
Moreover, we note that Ostrowsky is directed to a disparate closure
structure from that of Davis. The closure structure of Ostrowsky, unlike the
closure device of Davis, includes an upper deck that defines a discharge
orifice for the container. A cover portion of the closure structure of
Ostrowsky includes a sealing post that cooperates with the upper deck
opening to seal the container. The Examiner has not fairly explained how
the combination of Ostrowsky and Davis would suggest the here claimed
cylindrical container and closure device structure including a flip-top inner
circumferential recess capable of forming a fluid tight seal with a cylindrical
container mouth lip flange together with ratchet teeth and engaging threads
arranged as claimed. In this regard, Davis teaches that the sealing position
for the container is removed from the location of the container mouth, as
noted above.
Rejections based on § 103(a) must rest on a factual basis with these
facts being interpreted without hindsight reconstruction of the invention
from the prior art. See In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
177 (CCPA 1967). Our reviewing court has repeatedly cautioned against
employing hindsight by using the appellant’s disclosure as a blueprint to
reconstruct the claimed invention from the isolated teachings of the prior art.
See, e.g., Grain Processing Corp. v. American Maize-Products Co., 840
F.2d 902, 907, 5 USPQ2d 1788, 1792 (Fed. Cir. 1988).
From our perspective, the Examiner’s rejection appears to be
premised on impermissible hindsight reasoning. On the record of this
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