Appeal No. 2000-0526
Application No. 08/818,958
into the needle or cannula will also move upwardly into the
air trap.
We note that claim 2 does not require that the "urging"
step take place after the orienting step as the appellant's
argument on page 2 of the reply brief implies. From our
viewpoint, nothing in claim 2 precludes the urging taking
place simultaneously with the orienting step, for example.
Moreover, the examiner's position that the step of
maintaining the syringe in the horizontal orientation (after
having first placed it in such orientation) while inserting it
into the patient will inherently urge gas from the needle or
cannula and syringe upward into the air trap, since the needle
or cannula will undergo shaking, appears reasonable to us.
After the PTO establishes a prima facie case of anticipation
based on inherency, the burden shifts to the appellant to
prove that the prior art does not possess the characteristics
of the claimed invention. See In re Thorpe, 777 F.2d 695,
698, 227 USPQ 964, 966 (Fed. Cir. 1985). The appellant has
not even specifically argued, much less proven, that such
shaking and consequent gas movement will not inherently occur
during insertion.
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