Appeal No. 95-1747
Application 08/047,994
Next for our consideration is the examiner's rejection
of claims 9 through 18 under 35 U.S.C. § 102(b) as being
anticipated by Gibilisco. The patent to Gibilisco is directed to
"apparatus for breaking tablets such as medicinal tablets into
smaller parts" (col. 1, lines 5-6). While there is some
similarity between the structure of the apparatus of Gibilisco
and appellant's claimed soft pack opener, we are of the opinion
that the examiner's conclusion that the structure of Gibilisco
would "inherently be capable of performing the functions as
claimed with respect to a soft pack" (answer, page 4) is contrary
to the clear teachings of Gibilisco and is based totally on
speculation and conjecture on the examiner's part. More
particularly, we note that even if the hammer (40, 43) of
Gibilisco may be capable of puncturing the backing of a soft pack
dosage unit section placed in the opening defined by the
triangular shaped cuts (32) of the slidable flanges (31), the
contacting surfaces (43) of the hammer are clearly not sized in
the manner defined in appellant's claims on appeal so as to
maintain a space between the contacting surfaces (43) and the
dosage unit (e.g., the tablet 2 of Gibilisco). In clear contrast
with the requirements of appel- lant's claims on appeal, the
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