Appeal 2007-2488
Application 10/081,483
1 (2) any differences between the claimed invention and the prior art, (3) the
2 level of skill in the art, and (4) any relevant objection evidence of
3 obviousness or non-obviousness. KSR 127 S.Ct. at 1731, 82 USPQ2d at,
4 1389 (2007), Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18
5 (1966). The references of record may be relied upon to show of the level of
6 skill in the art. In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121
7 (Fed. Cir. 1995).
8 We have considered only those arguments made before us in coming
9 to our decision. Arguments not made are waived. See 37 C.F.R. § 41.37(c)
10 (1) (vii) (2004).
11
12 V. Analysis
13 A. Frutin I
14 The Examiner has rejected claims 1, 3, 5-8, 15, and 16 as being
15 anticipated by Frutin I. The Examiner further directs us to Rudick which is
16 said to provide evidence that a tilt design valve like that used in Frutin I is
17 capable of being opened with the mouth.
18 As set forth above (FFs 9-15), we find that Frutin I teaches each
19 element of the subject matter under rejection.
20 Farr argues that Frutin I does not teach the discharge of an
21 effervescent beverage. (Br. at 9). We disagree. While Frutin I may not use
22 the term “effervescent beverage”, Frutin I, like Farr, teaches placing a liquid
23 beverage in the container along with “a sparingly soluble effervescent
24 inducing gas” such as nitrous oxide. (FFs 3 and 9). Such a teaching is a
25 sufficient basis to support the Examiner’s determination that Frutin I teaches
15
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