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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