Appeal No. 96-3717
Application 08/229,115
application to the examiner for further consideration.
The Claimed Subject Matter
The claimed subjected matter is directed to a medical tube. Claims 12 and 16 are representative
of the claims on appeal and read as follows:2
12. A medical tube for insertion into a mammal made of a hydrophobic non-
halogenated polyurethane comprising a tube of an isocyanate component, a chain extender
and a non-halogenated polyol component, having a water absorption at body temperature
of said mammal of not more than 5 wt%; a mechanical loss tangent of at least 0.5 at said
body temperature; a modulus of transverse elasticity of 1-1000 MPa at said body
temperature; and a modulus of transverse elasticity at a temperature of 10EC lower than
said body temperature which is at least twice said modulus of transverse elasticity at said
body temperature.
16. The medical tube of Claim 12, wherein the molar ratio of isocyanate
component, chain extender and non-halogenated polyol component in said hydrophobic
non-halogenated polyurethane is 1.5-3:0.5-2:1.
2In our opinion, claims 12-20 and claims 21-29 are identical in scope. The only difference between claim 12 and
claim 21 is the addition of the language “said medical tube” in line 3 of claim 21 after --polyol component, --. At oral
hearing, counsel for appellants stated that claims 12 and 21 were distinguishable in that claim 21 attempts to distinguish
a single layered tube from a multi-layered tube. We fail to see this distinction between the claims. Claim 12 defines a
medical tube as being made of a hydrophobic non-halogenated polyurethane and a tube having the properties set forth
in the claim, while claim 21 defines the medical tube as being made of a hydrophobic non-halogenated polyurethane and
having the same properties as set forth in claim 12. We find that the “medical tube” and the “tube” as set forth in the
claims are the same. The specification does not disclose that the “medical tube” and “tube” are structurally different
or separate and distinct elements. On page 3 specification, the “medical tube” is defined as being “in the form of a tube.”
On pages 6-9 of the specification, the “tube” is disclosed as being non-halogenated polyurethane having an isocyanate
component, a chain extender and a non-halogenated polyol component. Based on these facts, we must conclude that
“a tube” recited in both claims 12 and 21 means a “medical tube” as set forth in the preamble of each claim. Upon return
of this application to the jurisdiction of the examiner, the examiner should address this matter in accordance with Section
706.03(k) of the Manual of Patent Examining Procedure, 7th Edition, July 1998.
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