Appeal No. 96-3935
Application 08/209,673
under 35 U.S.C. § 112, second paragraph, and not a rejection under 35 U.S.C. § 103 as is presently
before us for review. Thus, it appears that appellants’ sole argument regarding claim 49 has no merit in
the present case and is clearly not persuasive of error on the examiner’s part. For that reason we will
sustain the examiner’s rejection of claim 49 under 35 U.S.C. § 103. We also note that claim 49 on
appeal is broader than independent claim 40 since it does not include the “whereby” clause of claim 40,
and instead merely requires that the water-soluble resin of the plug/memory means “retain the flow
orifice until exposed to water thereby causing the flow orifice to close.”
As is apparent from the foregoing, the decision of the examiner rejecting claims 2 through 7 and
40-48 of the present application under 35 U.S.C. § 102(b) based on Wozniak is reversed. The
examiner’s decision rejecting claims 8 through 10 under 35 U.S.C. § 103 as being unpatentable over
Popular Science Dec. 1989 or July 1989 in view of Wozniak is also reversed. However, the rejection
of claim 49 under 35 U.S.C. § 103 as being unpatentable over Popular Science Dec. 1989 or July
1989 in view of Wozniak is sustained.
The decision of the examiner is, accordingly, affirmed-in-part.
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