Appeal 2007-1325
Application 10/065,722
1 On that basis, the Examiner found that one skilled in the art would
2 have known to use the closure tab in Waterbury as part of the lid in Freek.
3 While we accept the Examiner’s use of Waterbury as describing the
4 sole known use of closure tabs on lids, we prefer to make our case for
5 obviousness under 35 U.S.C. § 103(a) using plural teachings of prior art tab
6 closures as found, e.g., in (1) Mueller, (2) Aichert, (3) De Mars and (4)
7 Lane. The criteria for combining references is not the number of references,
8 “but what they would have meant to a person of ordinary skill in the field of
9 the invention.” In re Gorman, 933 F.2d 982, 986, 18 USPQ2d 1885, 1888
10 (Fed. Cir. 1991).
11 We will affirm the Examiner’s rejection of claims 3, 9-11, 27-29,
12 36-39, 44-50, 55-59, 63, 65-70, 75-77, 80-83, and 88-95 under 35 U.S.C.
13 § 103(a), but use additional prior art to support our holding of obviousness.
14 Thus our affirmance is of the Examiner's rejection under 35 U.S.C.
15 § 103(a) based on the combined disclosures of Freek, Waterbury, Mueller,
16 Aichert, De Mars and Lane.
17
18 1. Scope and Content of the Prior art and Differences
19 “[P]roof of what was old and in general use at the time of the alleged
20 invention…may be admitted to show what was then old, or to distinguish
21 what is new…” Dunbar v. Myers, 4 Otto (94 U.S.) 187, 199 (1876).
22 From Waterbury, Mueller and Aichert one skilled in the art knows the
23 scope and content of the prior art includes tab closures individually
24 connectable to a recess in a cap using a mounting plug connected at the
24
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