Appeal 2007-0135
Application 10/138,088
1 top surface of the beverage container. Appellant contends that the
2 Examiner's reasoning has no basis in the references being combined, and
3 that the rejection was constructed only after a hindsight review of
4 Appellant's disclosure. (Br. 19-21). With respect to independent claim 34,
5 Appellant asserts that there is no disclosure in Crisci, Guinet, Luch, and
6 Ohmi of the first seal being compressed prior to the second seal contacting
7 the top surface of the beverage container. (Br. 23-25).
8 Appellant’s contentions regarding the dependent claims are largely
9 inapplicable and moot, for the reasons which follow.
10
11 We affirm-in-part, remand, and enter a new ground of rejection under
12 the provisions of 37 C.F.R. § 41.50(b).
13
14 ISSUE
15 Has Appellant shown that the Examiner erred in rejecting claims 1
16 and 17-25 under 35 U.S.C. § 103(a) as being unpatentable over the
17 combined teachings and suggestions of Crisci, Guinet, and Luch? The issue,
18 with respect to independent claim 1, turns on whether the references would
19 have suggested the first seal contacting and being compressed by the top
20 surface of the beverage container prior to the second seal contacting the top
21 surface of the beverage container. With respect to the rejection of claims
22 2-16 and 26-42, the issue is whether Appellant has shown that the examiner
23 erred in rejecting these claims under 35 U.S.C. § 103(a) as being obvious
24 over the combined teachings of Crisci, Guinet, Luch, and Ohmi. With
25 respect to independent claims 26 and 34, the issue turns on whether the
4
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