Appeal No. 2000-1682 Page 9
Application No. 08/845,503
nonobvious distinctions over the prior art.”); In re Wiseman,
596 F.2d 1019, 1022, 201 USPQ 658, 661 (CCPA 1979)(arguments
must first be presented to the Board).
In view of the foregoing, we will sustain the examiner’s
rejection under 35 U.S.C. § 102(b) of apparatus claim 1 as
being anticipated by Gerstel. We will also sustain this
rejection as it is directed to apparatus claims 2 and 3 as the
appellant has not addressed the separate patentability of
these claims. In re Nielson, 815 F.2d 1567, 1572, 2 USPQ2d
1525, 1528 (Fed. Cir. 1987).
In regard to method claims 4 and 5, appellant argues that
Gerstel does not disclose the step of “determining the depth
of the cut that will extend through the stratum corneum of
that animal at said delivery site but not penetrate the dermis
of that animal at said delivery site.”
The examiner is of the opinion that this limitation in
claim 4 is met by Gerstel and states:
. . . a step for determining the depth to
which the microprotrusions should cut,
which is inherent to the manufacturing
process of Gerstel since he desires a
certain depth of penetration which requires
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