Appeal 2007-1229
Application 10/325,333
1 respect to the teaching and suggestions of Lizio, Kim, and Miller, we agree
2 with the Examiner that the teachings and suggestions of the prior art
3 considered as a whole would have suggested to an artisan the subject matter
4 of claim 7.
5 We are not persuaded by Appellants' contention (id.) that Lizio
6 teaches away from the proposed combination because Lizio goes to great
7 lengths to ensure that the second closure member remains sealed. Lizio
8 describes having the contents remain free of contamination. However, once
9 the package is opened and some of the products have been removed, an
10 artisan would have been motivated to make the second closure 28 re-sealable
11 to prevent contaminants from entering the package and contaminating the
12 remainder of the products. “The Court [in Adams] recognized that when a
13 patent claims a structure already known in the prior art that is altered by the
14 mere substitution of one element for another known in the field, the
15 combination must do more than yield a predictable result. 383 U.S., at 50-
16 51.” KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1395. Here, we find that
17 making the second closure of Lizio re-sealable would have been a
18 predictable result in view of the description in Miller that the pressure
19 sensitive adhesive and release material were well known in the art.
20 From all of the above, we are not convinced of any error on the part of
21 the Examiner is rejecting claim 7 under 35 U.S.C. § 103(a) as being
22 unpatentable over the combined teachings and suggestions of Lizio, Kim,
23 and Miller. The rejection of claim 7 is sustained.
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