Appeal No. 1997-2512
Application No. 08/118,905
cavity.
The examiner has not pointed to any evidence showing that Whittaker discloses the
steps of penetrating the lower section of the sealed tube, followed by penetrating the upper
section of the tube, to release the biological or pharmaceutical material to a mucosal
membrane of an animal. Nor has the examiner explained how these claim elements would
be inherent in Whittaker’s delivery method. Contrary to the examiner’s allegation, the
dispensing method as described in Whittaker would not meet the claim elements in
question here. This is because claim 12 requires penetrating a lower section of the tube,
followed by penetrating in the upper section to release the biological or pharmaceutical
material to an animal. In Whittaker, the coatings 15 and 17 are first removed. But the
removal of these coatings cannot reasonably be considered “penetrating” as required by
the claims on appeal because there is nothing separate from the sealed tube entering into
(or passing into or through) the sealed tube during the removal of these coatings. We also
note that the seal (column 2, lines 3-8 and column 2, line 48 to column 3, line 1) covering
discharge opening 11 is apparently broken by the force of the ejecting medicinal fluid or
fluffy preparation. However, this breaking of the seal also cannot reasonably be
considered to meet the limitation “penetrating” as recited in the claims on appeal because
nothing separate from the sealed tube enters into the sealed tube during the breakage of
the seal at discharge opening 11. Additionally, there is no penetration at the other end by
squeezing bulb 22 to compress internal air, which in turn acts on the piston plug 14,
8
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