Appeal No. 97-1871
Application 08/325,847
radii of 0.003 to 0.0155 inches (0.006 to 0.031 inches in diameter) (col. 9, lines 23 to 26). In view of
this disclosure, it would have been obvious to one of ordinary skill in the art to use the Stametz process
to produce needles having the ratios, tip radii (diameters) and shaft diameters taught by McIntosh as
being desirable for blunt surgical needles.
(b) Claim 22 is rejected under 35 U.S.C. § 102(e) as being anticipated by Stametz. Note
Stametz' disclosure that the needles being tumbled may be "semi-finished" and have tapered tips (col.
4, lines 7 to 10).
We note that since appellant is claiming the same invention as at least claim 1 of the Stametz
patent, it cannot be overcome via an affidavit or declaration under 37 CFR § 1.131.
See MPEP § 715.05.
Remand to the Examiner
This application is remanded to the examiner to determine whether claims 4 to 7, 12 to 15, 17,
18 and 23 to 30 should be rejected under § 103 as unpatentable over Stametz in view of other prior
art.
Conclusion
The examiner's decision to reject claims 1 to 18, 20, 21 and 30 to 32 under 35 U.S.C.
§ 112, first paragraph, and to reject claims 1 to 18 and 20 to 32 on the ground of obviousness-type
double patenting, is affirmed. The examiner's decision to reject claims 1 to 18 and 20 to 32 under 35
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