Appeal No. 1997-2512
Application No. 08/118,905
Claim 12 is representative of the subject matter on appeal and reads as follows:
12. A method of delivering an effective amount of biological or pharmaceutical
material to an animal by providing a tube containing said biological or pharmaceutical
material, which tube is sealed at its ends and is administered to an intended cite [sic, site]
of the animal by penetrating the sealed tube at its lower section, followed by penetrating
the tube at its upper section to release the material to the mucosal membrane of the
animal.2
The prior art relied upon by the examiner are as follows:
Whittaker 2,066,868 Jan. 5, 1937
Frenkel et al. (Frenkel) 5,045,313 Sep. 3, 1991
Cassou et al. (Cassou) 5,190,880 Mar. 2, 1993
The prior art references of record newly relied upon by the Board are:
Kidder 4,792,333 December 20, 1988
Appellants’ admission at page 1, lines 10-13 of the specification (hereinafter referred to as
“the admitted prior art”).
As a preliminary matter, we note that the examiner has expressly withdrawn the
objection and rejections under 35 U.S.C. § 112. See the examiner’s communication
mailed May 14, 1996 and the last full paragraph on page 2 of the Answer. Therefore,
2 Claim 12 was amended after appeal in an amendment filed concurrently with the Reply
Brief on January 16, 1996. In a communication mailed May 14, 1996, the examiner indicated that
the Reply Brief has been entered and that claim 12 has been amended. We note, however, that
the appellants did not submit a corrected copy of the appealed claims with their Reply Brief, and
that the amendment of claim 12 has not been clerically entered. For purposes of this appeal, we
will presume that amended claim 12 has been clerically entered. Upon return of this application,
the examiner should attend to the formal entry of the aforementioned amendment.
2
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