Appeal 2007-0891
Application 09/445,043
than the maximum possible extension of the deformable member towards
the laminar member to prevent rupture of the flexible member due to
excessive pressure within the closed can and to limit the stress placed on the
peel seal for limiting the possibility of its failure."
Appellants disclose (Specification 11:1-7) that the membrane 11
expands during cooking of food inside the can. Further, Appellants state
(Specification 12:10-14) that the presence of the circular disk portion 21 of
the rigid cap 12 "prevents rupture of membrane 11" when pressure is
generated during cooking. The laminar member recited in claim 1 is applied
to the side of the rigid cap facing the flexible membrane. Thus, Appellants
disclose that the rigid cap with the laminar member prevents rupture of the
flexible membrane when the flexible membrane expands from pressure built
up inside the can during cooking. The Examiner's rationale for modifying
Hiroshi sounds much like Appellants' disclosure.
The Examiner provides no evidence to support the assertion that the
claimed spacing would have been obvious. The Federal Circuit has stated:
To reach a non-hindsight driven conclusion as to whether a
person having ordinary skill in the art at the time of the
invention would have viewed the subject matter as a whole to
have been obvious in view of multiple references, the Board
must provide some rationale, articulation, or reasoned basis to
explain why the conclusion of obviousness is correct …
[R]ejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.
In re Kahn, 441 F3d 977, 987-88, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
Clearly, the Court's reasoning applies to modifications of a reference as well
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