Appeal No. 97-2908
Application 08/347,201
proposed modification of Zackheim, the examiner has
inappropriately devised a correspondence between (1) the slit
38 in Zackheim’s flat member 24 and the underlying open
cavities or chambers of Freeman and Nicko, and between (2) the
aluminum foil barrier layer 26 of Zackheim and the diaphragms
of Freeman and Nicko. One of ordinary skill in the art, in
our view, simply would not have so interpreted the applied
prior art at the time of appellant’s invention (i.e., without
the benefit of having first seen appellant’s invention). In
this regard, we view the examiner’s theory as to what the
ordinarily skilled artisan would have gleaned from a reading
of the applied references to be flawed because of both
structural and functional differences between the various
structures of the references. The structural differences
between the slit 38 and aluminum foil barrier layer 26 of
Zackheim on the one hand and the open chambers and overlying
elastomeric diaphragms of Freeman and Nicko on the other hand
are readily apparent. Functionally, Zackheim’s slit 38 is
constructed to reseal itself when the cannula 48 is withdrawn,
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