Appeal 2007-2488
Application 10/081,483
1 The Examiner has directed us to Rudick as evidence to support the
2 rejection under 35 U.S.C. § 102(b). However, since Frutin I teaches all the
3 elements of the claimed subject matter, we need not and do not consider
4 Rudick.
5 We affirm Examiner’s rejection of claims 1, 3, 5-8, 15, and 16 as
6 being anticipated by Frutin I.
7 B. Frutin I and Kohler
8 The Examiner has rejected claims 12 and 13 under 35 U.S.C. § 103(a)
9 over the combination of Frutin I and Kohler. As acknowledged by Farr,
10 claims 12 and 13 “further define the independent claims by the inclusion of a
11 specific dip tube that has an aperture which communicates between the
12 headspace above the beverage in the container and the interior of the dip
13 tube…” (Br. at 11).
14 Farr does not argue that Kohler fails to teach the dip tube and aperture
15 as claimed. Instead Farr argues that “[o]ne would not combine the teachings
16 associated with an aerosol spray with that of a container that is to be opened
17 prior to the consumption of a beverage.” (Br. at 12). We disagree.
18 Kohler teaches aerosol valves having dip tubes with vapor tap holes.
19 According to Kohler, such valves give the advantage of allowing for a
20 constant pressure so that all the material within the container can be
21 expelled. (FF 19). As recognized by the Examiner, one skilled in the art
22 would have had ample reason to use the aerosol valve of Kohler, which has a
23 dip tube, in the whipped cream dispensing container of Frutin I, which calls
24 for a “conventional aerosol valve” (Answer at 5; FF 11). In particular, one
25 skilled in the art would have recognized the advantage of using a valve with
17
Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: September 9, 2013