and the claims at issue; and (3) the level of ordinary skill in the art.1
With regard to the scope and content of the prior art, we find that Jones discloses a
feminine hygiene product disposal system (10) including a main container (12), a sealable
top (16) and a plurality of disposal containers (20). Each disposal container (20) is
designed for holding a used feminine hygiene product and has a sealable opening (24).
(Jones, col. 3, lines 45-54). The sealable opening (24) is formed by a locking track (38).
(Jones, col. 4, line 4). We further find that Burrow discloses that it is well known in the
feminine hygiene product packaging art to individually package disposable feminine
hygiene articles using a resealable cover sheet that allows the user to re-use the package
for disposal of a used pad. (Burrow, col. 1, lines 23-30). We further find that May
discloses that it was well known in the packaging closure art to use a slider device in a
closure assembly of a resealable package. (May, page 3, para. [0034]).
With regard to the differences between the prior art and the claims at issue, we find
that Jones fails to explicitly teach holding a supply of feminine hygiene products within
the disposable containers (20) in a hygienic condition. We also find that although
Burrow teaches using the same package for holding a new pad and discarding a used pad,
Burrow also does not teach or suggest by itself using a main receptacle to hold a supply
of pads that are packaged within individual disposable packages.
With regard to the level of skill in the art, the Examiner has attempted to make a
finding as to the level of one of ordinary skill in the art, on which he relies in his
obviousness conclusion. (Examiner’s Answer, p. 10). Mere discussion of the level of
ordinary skill without citation of a reference presents an evidentiary problem because
there is no way for anyone to verify the truth of the statements. “Even if obviousness of
1 Although Graham also suggests analysis of objective evidence such as commercial success, long felt
but unsolved needs, failure of others, etc., the appellants presented no such evidence for the Board’s
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