Appeal No. 96-3021
Application 08/104,452
consider that one of ordinary skill in the art would have viewed
the barrel of the gun disclosed in Ester as being a "shotgun
barrel," since it is not associated with a "shoulder weapon" as
required in the definition found in the Glossary of Ordnance
Terms relied upon by the examiner. Accordingly, the examiner's
rejection of claims 1 through 3 based on Ester in view of Majors
will not be sustained.
With regard to claim 5, we again note that this claim
is directed to a firearm comprising a smooth bore barrel having a
threaded portion at the muzzle end thereof and a tactical
breaching device mounted on the threaded portion of the barrel,
and that claim 5 is broader than claim 1, in that claim 5 does
not expressly limit the smooth bore barrel therein to being that
of a shotgun. With this in mind, we find no structural
distinction between the device as disclosed in Ester and that
defined in appellant's claim 5. Evidence establishing lack of
novelty in the claimed invention necessarily evidences
obviousness. Lack of
novelty is the ultimate or epitome of obviousness. See In re
Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982); In
re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA 1974).
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