Appeal 2007-2111
Application 09/921,204
1 Nor are we persuaded by Appellant's contention (Br. 17 and Reply Br.
2 6) that Jenniches does not teach a shipping/packaging carton but rather
3 teaches a pack of cigarettes. Firstly, Ford teaches the use of a
4 shipping/packaging carton. Secondly, Jenniches teaches a cigarette packet
5 which is a package for the cigarettes. The cigarette package, usually in the
6 form of a box, is a carton for the cigarettes. Because the carton is capable of
7 being shipped, either alone, or in a larger package, it is a shipping/packaging
8 carton. We find nothing in the record that would preclude a carton placed
9 inside a larger carton or container for shipping from being considered to be a
10 shipping carton.
11 Nor are we persuaded by Appellant's contention (Br. 17) that none of
12 the references are directed to a shipping/packaging carton that advertises the
13 products of the owner or sender, as well as the products of another party. As
14 we found, supra, Ford describes a shipping/packaging carton, and Jenniches
15 describes a package having advertisements from both the product
16 manufacturer and another manufacturer.
17 Nor are we persuaded by Appellant's contention (Br. 17) that "[i]f the
18 claim 1 invention were in fact obvious, those skilled in the art would have
19 implemented it by now." Appellant's contention blurs the distinction
20 between § 102 and § 103 because Appellant is in effect arguing that since
21 the invention is not anticipated, it is therefore non-obvious. See, Tokyo
22 Shiabura Elec. Co., Ltd. v. Zenith Radio Corp., 548 F.2d 88, 95, n. 21, 193
23 USPQ 73, 80, n. 21 (3rd Cir. 1977).
24 Nor are we persuaded by Appellant's assertion (Br. 18) that claim 1
25 solves and is directed to a different problem than that of the cited references.
14
Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: September 9, 2013