Appeal No. 2006-2060 Page 8
Application No. 10/605,873
confronting the inventor and that the Bowes reference is remarkably similar to the
claimed invention except for the missing second prong. A person of ordinary skill
in the art, possessed with knowledge of the Bowes device, would have quickly
realized that it would be advantageous to use two or more prongs, which English
teaches for use for the same purpose of cutting through a sealed bottom of capsule
member, on the inclined cutting surface of the Bowes device, to facilitate the initial
cut through the sealed bottom. As such, we find sufficient motivation to modify
the device of Bowes with the teachings of English.
Finally, with regard to the appellant’s argument that even if a person of
ordinary skill in the art combined Bowes with English, one would not arrive at the
claimed invention (Appellant’s Reply Brief, p. 4), without further explanation from
the appellant, we fail to see how this is the case. To modify Bowes to facilitate
cutting of the sealed bottom, one needs to merely add another prong to the inclined
cutting edge. Such a modification is simple and would clearly arrive at the claimed
invention.
The appellant does not separately argue the patentability of dependent claims
2-4, but relies instead on the arguments for patentability of claim 1. Accordingly,
we sustain the rejection of claims 1-4 under 35 U.S.C. § 103(a) as being
unpatentable over Bowes in view of English.
Turning lastly to the rejection of claim 5 as being unpatentable over Bowes
in view of English and Rizzardi, the examiner has determined that Rizzardi shows
a cap (10) having a peripheral lip with apertures (15) and that it would have been
obvious to modify the first member of the Bowes device, as modified by English,
to include apertures “to reduce the material and to reduce the cost of manufacture.”
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