Appeal 2007-0020
Application 10/680,510
Examiner erred in rejecting the Appellants’ claims under 35 U.S.C. § 112, second
paragraph.
Rejection over Collette in view of Du Pree
Claims 28-35, 38-42, 74-76, 79 and 80
Collette discloses a molded polyester bottle having an upper mouth-forming
portion, a lower base-forming portion and a substantially cylindrical sidewall
portion (fig. 5) as required by the Appellants’ claims. Collette’s bottle has a neck
flange (figs. 2, 5) but the shape of that flange is not disclosed.
Du Pree discloses a decanter having a flange with ten straight sides and
apexes (figs. 1, 3).
The Appellants argue that because Du Pree does not disclose a neck having a
substantially circular cross-section or at least one thread, it is not apparent why one
of ordinary s kill in the art would have combined Du Pree with Collette (Br. 18).
Neck flanges are not mentioned in the “Background of the Invention” section of
the Appellants’ Specification. However, JP ‘093 (not applied in this rejection)
indicates (p. 2) that capping-load support neck flanges were conventional in the art
long before the Appellants’ filing date.3 It would have been readily apparent to
one of ordinary skill in the art that Du Pree’s neck flange shape on Collette’s bottle
would be effective for carrying out the desired gripping of the neck during
capping.
The Appellants argue that Du Pree does not disclose a flange having an odd
number of straight surfaces (Br. 19; Reply Br. 12-13). As pointed out by the
Examiner (Answer 5, 8-9), the Appellants’ claims require that the outer peripheral
3 Because the JP ‘093 capping-load support flange is non-circular (fig. 2-B), the
Appellants’ argument that “the examiner’s assertion that it is well known to use a
4
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