Appeal 2006-3332
Application 10/161,519
Appellant seeks review of the Examiner’s rejection of claims 1, 2, 4-7,
12, 13, 16, 17, 20, and 21 under 35 U.S.C. § 102(b) as anticipated by
Takenaka, and rejections under 35 U.S.C. § 103(a) of claims 15 and 22 as
unpatentable over Takenaka, claims 8 and 19 as unpatentable over Takenaka
in view of Homma, and claims 9-11 and 18 as unpatentable over Takenaka
in view of AAPA.2
The Examiner provides reasoning in support of the rejections in the
Final Rejection (mailed April 8, 2003) and Answer (mailed April 20, 2004).
Appellant presents opposing arguments in the Appeal Brief (filed December
11, 2003) and Reply Brief (filed June 24, 2004).
OPINION
The first issue for our consideration is whether the Examiner erred in
rejecting claims 1, 2, 4-7, 12, 13, 16, 17, 20, and 21 as anticipated by
Takenaka and, more specifically, whether Takenaka’s disclosure of a
container 1 having a hollow portion 3 “filled with a mixture of pulp,
sawdust, sugars which termites like, and a slowly-acting insecticide”
(Takenaka Translation 1) satisfies the limitation in claims 1 and 12 of “a
toxicant-free monitoring device.” The Examiner’s position is that “[p]art of
the matrix [i.e., mixture] can be considered as the monitoring device and
2 Although the Examiner did not expressly restate the rejection of claims 9-
11 and 18 in the Answer, the Examiner’s discussion of these claims on page
3 of the Answer indicates that the Examiner intended to maintain this
rejection. Appellant also understands this rejection to have been maintained
by the Examiner (Reply Br. 2)
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