Ex Parte Farr et al - Page 15


                  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                           

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