Appeal No. 2000-0526
Application No. 08/818,958
embodiment of the subject matter of claims 13 and 14 of the
Farris I patent is formed with a wide central portion which
tapers towards the outlet (tip 18a) and towards the gas
passageway (passage 22a) (note column 3, lines 25-29 and 39).
Moreover, such tapering of the container or body portion of a
plungerless syringe was conventional in the art at the time of
the appellant's invention, as evidenced by Farris II.
Accordingly, such tapering is not a patentable distinction
over the method of claims 13 and 14 of Farris I.
For the foregoing reasons, we find ourselves in agreement
with the examiner that the subject matter of claims 3 and 9 on
appeal is not patentably distinct from the subject matter of
claims 13 and 14 of the Farris I patent. Accordingly, we
shall sustain the examiner's obviousness-type double patenting
rejection of claims 3 and 9, as well as claim 10 which falls
with claim 3 in light of the appellant's failure to separately
argue the patentability of claim 10 apart from claim 3.
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