Appeal No. 2000-0526
Application No. 08/818,958
skill. Continental Can Co. v. Monsanto Co., 948 F.2d 1264,
1268, 20 USPQ2d 1746, 1749 (Fed. Cir. 1991).
The examiner's position in rejecting claims 2 and 10 as
being anticipated by Farris I, as set forth in the final
rejection (pages 2-3) and repeated substantially verbatim in
the answer (pages 3-4), is as follows:
Farris '398 [Farris I] discloses the method
steps as claimed in column 4, lines 7-38. The only
step that is not explicitly taught is the urging of
any gas from the infusion device and the syringe
into the air trap. However, Farris discloses (4:21-
27) indicating that the needle is installed onto the
syringe and the device horizontally oriented causing
any air trapped in the syringe to move upwardly into
the air trap. This also is considered to inherently
expel air from the needle since the device will
undergo shaking while the syringe needle is
positioned to be inserted into the patient and will
inherently urge gas toward the gas chamber. At this
position, the air trap will be located at the
highest elevation of the syringe. The syringe
clearly includes a removable tab at 20, 20a and 20b.
The appellant's statement on page 11 of the brief that
the examiner's observation that there is no "urging" step
defeats anticipation is a mischaracterization of the
examiner's position. The examiner has determined that air
will inherently be expelled or urged from the needle (device)
and the syringe by the positioning of the device for insertion
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