Appeal 2007-1913
Application 10/299,661
manner proposed by the Examiner (Br. 20). Finally the Appellant argues that even
if Perl and Ammarell could be combined, “the combination would not have one or
more recess portions ‘positioned closer to the opening of the container than a
bottom of the container’ as recited in claim 1.” (Br. 22).
The Examiner correctly found that Perl teaches that the bottle may have at
least one recess and the or each recess may be formed anywhere in the main body
of the bottle (Answer 9, Findings of Fact 1-2). The Examiner also correctly found
that Ammarell discloses the bottle having two recesses on the main body near the
neck (Answer 9, Findings of Fact 3-4). The Examiner concluded that providing
more than one recess on the bottle would have been obvious to one of ordinary
skill in the art.
To the extent the Appellant argues in his pre-KSR Brief that there is no
explicit teaching, suggestion, or motivation to combine Perl and Ammarell, that
argument is foreclosed by KSR. KSR, 127 S.Ct. at 1740-41, 82 USPQ2d at 1396.
In addition, Perl does teach that at least one recess in which a finger can be fitted
can be formed in the body of the bottle and that the recess can face in any direction
(Findings of Fact 1-2). Perl thus suggests the addition of a second recess and the
outward orientation of the recesses as required by claim 1. In addition, Ammarell
teaches two finger rests positioned closer to the opening of the container than the
bottom of the container. On that record, we find that Perl provides explicit
motivation to modify its teachings by adding a second recess portion. Under those
circumstances, the Examiner did not err in holding that it would have been obvious
to one having ordinary skill in the art at the time the invention was made to
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