Appeal No. 2007-0737
Application No. 10/290,606
Without the rigid shell, the air pumped from the ejector bulb 15 would not
dislodge the ice cream.” (id.) We do not find this argument persuasive. As
pointed out by the Examiner, without its rigid shell, “the operator would
simply press down on the flexible portion using his or her hand to release the
ice cream.” (Answer 6-7.)
Appellant also argues that if the rigid shell were removed, the
vulcanizing cutter and ring to scoop the ice cream would have no structural
support (Reply Br. 4). “Therefore, if one were to try to use the Ellis
invention without the outer shell to scoop ice cream from a container, the
whole dipper portion of the scoop would collapse, accordion-like, when
pressed against ice cream.” (id.)
We do not find this argument persuasive. Ellis teaches the annular
cutter for scooping the ice cream as rigid and a separate element from the
rigid exterior shell (Ellis at p. 1, ll. 42-50). Consequently, eliminating the
shell would leave a rigid “rim portion” as required by instant claim 1.
Moreover, the Examiner has provided three references which describe how
to make containers which do not collapse when inverted to discharge a solid
food. Appellant’s argument fails to take in consideration that the skilled
worker, motivated to have removed the rigid shell from Ellis’s dipper, would
have known how to modify it to prevent it from collapsing “accordion-like.”
Appellant asserts that “each of the references cited describes an
exterior formed of a single material. No suggestion exists to form the
exterior of the containers of the secondary references from two different
types of materials, one rigid and the other elastomeric.” (Br. 5). We do not
find this argument persuasive. Dewitt and Donovan describe containers in
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