Appeal No. 1998-1418
Application 08/313,249
of the bottom opening of the pump shaft, thereby preventing the
medicant to be introduced therein.
With this as our basis, we find that the limitation of
“about 2-3 mm” would be a reasonable distance between the pump
shaft and the side surface of the vessel, established through
routine experimentation. For the above reasons, we will sustain
the examiner’s rejection of independent claim 38 on appeal under
35 U.S.C. § 103(a) based on Anthony, Bendig, Takahashi, Dobilas,
Junghans, Sukhin and Hughes. In accordance with appellants'
grouping of the claims (brief, page 6) and as a result of their
failure to argue the patentability of claims 39 and 40 separate
from that of independent claim 38, from which they depend, we
conclude that claims 39 and 40 will fall with claim 38. Thus,
the examiner's rejection of claims 39 and 40 under 35 U.S.C.
§ 103 will also be sustained.
With regard to the examiner’s rejection of claim 46
under 35 U.S.C. § 103(a) as being unpatentable over Anthony,
Bendig and Takahashi as applied to claim 1 above, and further in
view of Goodman, we note that claim 46 is directed to a method
of controlling an ultrasonic inhaler. Claim 46 does not
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