Appeal 2007-0924
Application 10/401,079
treatment would have been a predictable variation and obvious to one of
ordinary skill in the art. Appellant's arguments do not demonstrate error in
the Examiner's rejection. The rejection is sustained as to claims 1, 2, 5 and
8.
Claim 10:
Claim 10 depends from claim 1 and further recites the expandable
structure includes "at least one of paper, fabric, and plastic." Thus, the
additional issue presented with respect to claim 10 is whether it would have
been obvious to make the expandable structure (label 20b) of Wolfe of at
least one of paper, fabric and plastic, on the basis of its suitability for the
intended use, as a matter of obvious design choice, as contended by the
Examiner (Ans. 6).
Appellant argues that neither Wolfe nor Yannuzzi discloses the
material of the label, much less provides that it may be of paper, fabric or
plastic and that, unlike the situation in In re Leshin, 277 F.2d 197, 199, 125
USPQ 416, 418 (CCPA 1960) relied on by the Examiner, Appellant is not
merely selecting from materials disclosed in the applied prior art (App. Br.
17). Appellant additionally argues the selection of a material as fragile as a
piece of paper as the label material seems inconsistent with the Examiner's
proposed modification of Wolfe to provide a second compartment, thereby
increasing the size, and in turn the weight, of the Wolfe device (Reply Br.
12). Neither of these arguments is persuasive.
While there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness, “the analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
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