Appeal No. 2006-3056 4
Application No. 10/278,769
patent, and to the respective positions articulated by appellants and the examiner. As a
consequence of our review, we have made the determination that the examiner’s above-
noted rejection under 35 U.S.C. § 102(b) will not be sustained. Our reasons follow.
The examiner’s position concerning the rejection of claims 1 through 24 under 35
U.S.C. § 102(b) is set forth on page 3 of the answer, wherein the examiner urges that
Fischell shows an implantable drug delivery module 10 that is capable of
delivering a fluid medication continually at a basal rate and capable of
delivering a fluid medication at an interval rate where the interval rate is
different from the basal rate. Fischell also shows a controller 35 that is
programmable by a medical professional and operatively coupled to the drug
delivery module. See Figures 1-22 and col. 1, line 64 through col. 4, line 49.
paragraph [47] is calculated based on 15 hours instead of the
entire 24 hours of the time period. In that regard, Figure 3 of
the application appears to show the basal rate as constant over
the 24-hour period, which is exactly what appellants have argued
in the paragraph bridging pages 8 and 9 of their brief and also
on pages 15 and 16 thereof.
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