Appeal No. 97-0938
Application 08/292,502
medication administration is easier and more efficient than the
conventional mode, exemplified by the Herrick reference, wherein
the patient’s head is tilted back. In this regard, the Herrick
reference is completely devoid of any suggestion that eye drops
could be administered as recited in claim 15. Under these
circumstances, the examiner’s unsupported conclusion that the
“less than about 10mm” axial displacement recited in claim 15
would have been an obvious matter of design choice is not well
taken (see In re Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 8-9 (CCPA
1975)).
Moreover, the collar (housing member 20) of Herrick’s eye
drop dispensing device 12 essentially encloses the outlet opening
(fluid dispensing opening 18 of container 14) associated
therewith (see Figure 9). Thus, Herrick’s eye drop dispensing
device would not appear to be structurally capable of
administering eye drop medication in the manner recited in claim
15 even if it were provided with the “less than about 10mm” axial
displacement at issue. This further distinguishes the eye drop
dispensing device claimed over that disclosed by Herrick.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103 rejection of claim 15 or of claims 16, 17 and 19 though 22
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