Appeal No. 96-3999 Page 14
Application No. 08/395,719
We agree with the appellant that the combined teachings of
Pepicelli and Westgate would not have suggested the claimed
invention. In that regard, it is our opinion that one of
ordinary skill in the art would not have modified Pepicelli's
wall 32 and skirt 62 to have a threaded connection therebetween,
as proposed by the examiner, since that would be counter to
Petricelli's specific desire to permit gas flow out of the
container between the skirt 62 and wall 32 so that no pressure
build up is created and the container may be incubated so as to
stimulate the growth of the microorganisms. Since all the
limitations of claim 1, and claims 3 and 6 dependent thereon, are
not suggested by the applied prior art, the examiner's rejection
is reversed.
New grounds of rejection
Under the provisions of 37 CFR § 1.196(b), we enter the
following new grounds of rejection.
1. Claims 1, 3, 4 and 6 are rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly
point out and distinctly claim the subject matter which the
appellant regards as the invention for the reasons set forth
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