Appeal No. 96-2267
Application 08/154,344
Independent claim 1, a copy of which is found in the
appendix to appellant’s brief, is illustrative of the appealed
subject matter.
The sole reference of record relied upon by the examiner in
support of a rejection under 35 U.S.C. § 103 is:3
Gabbay 4,381,771 May 3, 1983
Claims 1, 2, 6, 8 and 12 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Gabbay.4
Reference is made to appellant’s main and reply briefs
(Paper Nos. 12 and 14) and to the examiner’s answer (Paper No.
13) for the respective positions of appellant and the examiner
with regard to the merits of this rejection.
Gabbay pertains to a female contraceptive device in the form
of a cervical cover. The Gabbay device comprises a dome-like
member 3 having an inflatable or spring biased collar 2 to hold
the cover securely to the walls of the vagina adjacent and
3Two other references listed on page 2 of the answer (Paper
No. 13) under the heading “Prior Art of record” have not been
included here in that they are no longer relied upon by the
examiner in the rejection of the appealed claims.
4This ground of rejection was applied against claims 6 and
12 for the first time in the examiner’s answer. In that the
rejection of claims 6 and 12 which had been set forth in the
final rejection (Paper No. 7) has not been repeated in the
answer, we presume that it has been withdrawn by the examiner.
See Ex parte Emm, 118 USPQ 180, 181 (Bd. App. 1957).
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