Appeal No. 97-1646
Application 08/080,890
propellant 42 is positioned by remotely controlled cylinder 26
onto cutting surface 70 between cutter 18 and retainer 24.
Remotely controlled cylinder 12 causes cutter 18 to pass through
the block, creating a multitude of pieces consisting of a sample
(Fig. 4) and excess cuttings (col. 3, line 1). With regard to
the “one or more cutting blades” recited in claim 1, it is noted
that Nix discloses that the cutter has a cutting surface (col. 2,
lines 11 to 13), and a skilled artisan would know that such a
cutting surface would inherently constitute a cutter blade in the
shape of the sample, similar to a cookie cutter. Cf. In re
Graves, 69 F.3d 1147, 1152, 36 USPQ2d 1697, 1701 (Fed. Cir.
1995), cert. denied, 116 S.Ct. 1362 (1996).
2. Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable
over Nix. Whether cutter 18 of Nix moves and retainer 24 remains
stationary, or vice versa, would be simply an obvious matter of
design choice.
Conclusion
The examiner’s decision to reject the claims on appeal (1)
under 35 U.S.C. § 112, second paragraph, is affirmed as to claims
6 and 9, and reversed as to claims 1 to 5, 8, 10, 11 and 13, and
(2) under 35 U.S.C. § 103 is affirmed as to claims 1, 8 and 9 and
10
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