Appeal No. 1997-2512
Application No. 08/118,905
See column 3, lines 40-56. At column 6, lines 24-26, Frenkel teaches: “In addition, while
the bradyzoite cysts have been fed directly, if desired the vaccine may include a suitable
carrier.”
However, in contrast to the subject matter of independent claim 12, from which
claims 14 and 15 depend, Frenkel does not disclose or suggest the following:
1. “providing a tube containing said biological or pharmaceutical material";
2. “which tube is sealed at its ends and is administered to an intended cite
[sic, site] of the animal”;
3. “by penetrating the sealed tube at its lower section";
4. “followed by penetrating the tube at its upper section";
5. “to release the material to the mucosal membrane of the animal.”
Recognizing the deficiencies of Frenkel, the examiner relies on Whittaker to show
that one of ordinary skill in the art would have been motivated to modify Frenkel’s method
by using the delivery device disclosed in Whittaker. As we discussed supra, however,
Whittaker fails to disclose claim elements 3 to 5 above. Nor is there any evidence to show
that one of ordinary skill in the art would have found the appellants’ claimed administration
technique to have been an obvious variation of Whittaker’s administration step (i.e.,
expulsion of the medicinal fluid by allowing compressed air generated from the squeezing
of a bulb to act on a plug that performs the function of a piston). Therefore, even if Frenkel
and Whittaker were to be combined as suggested by the examiner, the combination would
12
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