Appeal No. 95-0423
Application 07/696,859
intermediary of said shunt” lacks antecedent basis. However,
we agree with appellant that “[t]he word ‘intermediary’ is not
used in a structural sense in the claim which would require
antecedent support, but as its normal meaning that the
therapeutic substance is delivered through the intervention or
presence of the shunt” (brief, page 16). Under these
circumstances, we are convinced that the artisan would have no
trouble understanding the metes and bounds of claim 59,
particularly when the claim is read in light of the supporting
disclosure.
The 35 U.S.C. § 102(c) rejection
We shall not sustain the 35 U.S.C. § 102(c) rejection of
claims 1-32 and 34-63.
This rejection is founded upon the showing of facts in
appellant’s 37 CFR § 1.131 declaration (Prywes I) submitted
concurrently with the filing of the present application. 3
According to the examiner,
3The Prywes I declaration was submitted for the purpose
of antedating the Ritch ‘296 patent presently applied by the
examiner against certain appealed claims. The Ritch ‘296
patent was initially made of record by appellant in an
Information Disclosure Statement (Paper No. 2) submitted at
the time the present application was filed.
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