Ex Parte Dege et al - Page 10



            Appeal 2007-0229                                                                                 
            Application 10/968,436                                                                           
            ends of the insulated food box are fitted with handles 26 that appear to prevent the             
            box from resting on either of the ends, thus rendering the box incapable of being                
            placed in a vertical orientation.  Thus, Davis discourages one of skill in the art               
            from turning the insulated food box on its side as would be required to meet the                 
            claim limitations.  In addition, the insulated food box of Davis is explicitly                   
            described as having an “open top” which is contrary to the “closed top” required                 
            by claim 1 (Finding of Fact 1).  Davis thus does not teach a closed top and at least             
            one side wall having a first opening proximate the top of the housing and a second               
            opening proximate the bottom of the housing (Finding of Fact 2).  The Examiner                   
            thus erred in rejecting claims 1-2 and 13-14 as anticipated by Davis.                            
                B. Rejection of claims 3 and 4 under 35 U.S.C. § 103(a) as unpatentable over                 
                   Davis.                                                                                    
                   The Examiner relied on the same logic as in the § 102 rejection above to find             
            that each of the limitations of claims 3 and 4 are disclosed by Davis except for                 
            making the housing, door, and handle out of a flexible material (Answer 4-5).  The               
            Examiner found that “[i]t would have been obvious to one having ordinary skill in                
            the art at the time the invention was made to make the housing, door and handle                  
            out of flexible fabric, since it has been held to be within the general skill of a               
            worker in the art to select a known material on the basis of its suitability for the             
            intended use as a matter of obvious desire choice.” (Answer 5).  Claims 3 and 4                  
            share the same limitations that were missing from Davis as applied in the § 102                  
            rejection above.  Because Davis does not teach vertically orienting the insulated                
            food box disclosed therein, Davis thus does not teach a closed top and at least one              

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