Appeal 2006-2365
Application 10/209,736
CROLEY IN VIEW OF CUMMINGS OR QUESTAR
Claims 1, 2, 4-7, 9, and 10 stand rejected under 35 USC § 103(a) as being
unpatentable over Croley in view of Cummings or Questar. The examiner
determined that Croley meets all of the claimed limitations except for the claimed
indicia on the upper surface. The examiner relied on Cummings to teach that it is
known in the art to provide pattern indicia on a box blank and thus it would have
been obvious to one of ordinary skill in the art to provide pattern indicia in Croley,
as taught by Cummings, to advertise and/or identify the container easily. Answer,
p. 4.
The appellants argue that Croley, like Kuchenbecker, uses triangular flaps
(22b, 24b, 26b, 28b) as internal structural supports such that the flaps are not
externally viewable and therefore there is no motivation to print indicia on the
flaps. We agree with the appellants’ position.
Based on the same reasoning discussed supra, we find that even if one
having ordinary skill in the art were to combine the teachings of Cummings, which
shows indicia printed on the externally visible portions of a box blank, with the
container of Croley, it would not lead that hypothetical person skilled in the art to
print indicia on the triangular flaps of Croley, which are not visible. The
examiner’s assertion that one would have been motivated to add indicia to the flaps
of Croley for advertising or identification does not make sense, because the flaps
are not visible once the box of Croley is constructed.
Similarly, Questar does not cure the deficiencies of Croley. The depiction of
the Questar boxes on the web site shows that the visible external portions of the
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