Appeal No. 1997-2512
Application No. 08/118,905
Springfield, MA (1986), a copy of which is attached to this decision, the term “penetrate” is
defined as “to pass into or through,” “to enter by overcoming resistance,” or “to gain
entrance to.” The appellants’ specification uses the term “penetrating” in a manner that is
consistent with the ordinary meaning above. In the paragraph bridging pages 3 and 4 of
the specification, the appellants state as follows:
“To exit the pharmaceutical or biological material, the tube is adapted to
open by penetrating it effectively to release or expel the material. The tube
can be penetrated by means such as cutting. Typically, the tube is first
penetrated at a lower section and then at an upper section in order to effect a
release of the biological or pharmaceutical material. As would be realized, upon
cutting the tube, particularly a capillary tube, at the lower section, the biological or
pharmaceutical material does not exit the tube. Consequently, spillage of the
material and associate[d] negatives such as infection of humans can be avoided.
Upon cutting the tube at the upper section, (below the plug) the biological or
pharmaceutical material is released. Alternately, upon cutting the tube above or
through the plug, a plunger can be used to expel the biological or pharmaceutical
material from the tube by pushing the plunger down the tube.” (Emphases added.)
Rejection under 35 U.S.C. § 102(b)
Claims 12 and 13 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Whittaker.
The examiner states:
“Whittaker et al. disclose the use of a sealed tube, which contains a
plug, to administer medicants orally. Both ends are sealed (see
components 15 and 17 of the figures), and the plug is used to evacuate the
liquid. The outlet (11) can be plugged as well (see column 2, first
paragraph).”
See page 3 of the Answer. In responding to the appellants’ arguments, the examiner also
asserts as follows:
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