Appeal No. 2005-2410 Page 3
Application No. 08/928,272
OPINION1
Upon careful review of the respective positions advanced by Appellant and the
Examiner, we affirm for the reasons advanced by the Examiner and add the following
primarily for emphasis.
Claims 1, 5, 7 and 8 stand rejected under 35 U.S.C. § 102(b) over Burns. We
will limit our discussion to the subject matter of claim 1.
Appellant’s principal argument is that Burns does not disclose a bottom end
that is below the solid partition comprising a rounded bottom with an opening. (Brief
p. 3). We do not agree. Appellant is free to recite features of his invention based on
the structure. However, when describing the invention, the inventor must describe
this specifically to avoid the prior art. In the instant case, the Appellant has chosen to
describe the second end portion as “comprising a bottom end below said partition,
said bottom end comprising a rounded bottom having an opening therein.” The
specimen container of Burns is a cylindrical tube in shape comprising two ends
having a partition located there between. The cylindrical tube container is rounded at
1 Appellant asserts that for purposes of appeal that claims 1, 5 to 9 stand or fall together. (Brief,
p. 2). We note that claims 6 and 9 are separately rejected by the Examiner. We will consider the
rejections as presented by the Examiner.
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Last modified: November 3, 2007