Appeal No. 98-2788
Application 08/542,180
In reviewing the obviousness issue raised in this appeal, we have carefully considered
appellants’ specification and claims, the applied reference, and the respective viewpoints advanced by
appellants and the examiner. As a consequence of our review, we have come to the conclusion, for the
reasons which follow, that the examiner's rejection of the appealed claims is not well founded, and that
the evidence relied upon by the examiner does not support a conclusion of obviousness with respect to
the subject matter of claims 9 through 12 on appeal.
In evaluating the examiner’s rejection of claims 9 through 12 under 35 U.S.C. § 103, we agree
with the examiner that the only difference between the combination of a male external catheter and
applicator as seen in Metz and that set forth in the claims before us on appeal is the particular size
relationship of the flap (16) as required in the claims on appeal as compared to the inner sleeve section
(15) of Metz. The examiner, recognizing this deficiency in the applied reference, has urged that
“In applicant’s [sic] specification, none of these particulars are taught to solve any
particular problem or produce any unforeseen result, and therefore are considered an
obvious matter of design choice to one of ordinary skill in the art.
Accordingly it would have been obvious to one having ordinary skill in the art at the
time the invention was made to have provided the invention of Metz with the circular
opening with a diameter in the range of 75 to 92% of the inside diameter of the
cylindrical portion and the annular flap having a length between 0.25 to 0.65 inches as a
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