Appeal 2007-0135
Application 10/138,088
1 Patrick, Co., 464 F.3d 1356, 1360-1361, 80 USPQ2d 1641, 1645 (Fed. Cir.
2 2006). The mere fact that all the claimed elements or steps appear in the
3 prior art is not per se sufficient to establish that it would have been obvious
4 to combine those elements. United States v. Adams, id; Smith Industries
5 Medical Systems, Inc. v. Vital Signs, Inc., 183 F.3d 1347, 1356, 51 USPQ2d
6 1415, 1420 (Fed. Cir. 1999).
7
8 ANALYSIS
9 From the description in Guinet that the cap can integrally contain the
10 depending seal members or can have a liner that includes the depending seal
11 members (facts 5 and 7) we find that an artisan would have been motivated
12 to replace the cap with integral depending seal members of Crisci (Fig. 6)
13 with a cap and separate seal member. In addition, we note that the Examiner
14 has relied upon Luch for a flat top surface of the container. However,
15 independent claim 1 does not recite that the top surface of the container is
16 flat. In addition, because Crisci describes extending seal members 35 of
17 different lengths which engage the inclined flange 36 at the same time, and
18 Guinet also describes that a flat top surface is used with flat edged lips 22,
19 23, and 35-37 for the purpose of conforming to the shape of the flat wall or
20 curved shape of the bottle, we find that an artisan would not have been
21 motivated to provide Crisci with a flat top surface of the beverage container
22 for the purpose of having the inner seal member contact and compress
23 against the top surface of the beverage container prior to the outer seal
24 contacting the top surface of the beverage container. Accordingly, we agree
25 with Appellant (Br. 8) that it would not have been obvious to have provided
26 Crisci with a flat top surface, as disclosed by Luch, such that the inner seal
8
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