Appeal No. 2000-1682 Page 12
Application No. 08/845,503
burrs are of some other configuration. Therefore, we will not
sustain this rejection as it is directed to claim 1 or claims
2 and 3 dependent therefrom because an anticipation rejection
can not be based on an ambiguous disclosure. In re Turlay,
304 F.2d 893, 899, 134 USPQ 355, 360 (CCPA 1962).
In regard to claim 4, appellant argues that this
reference does not include a depth determining step as is
recited in claim 4. The examiner considers it inherent in
Ganderton to include this step since variations in
microprotrusion length is envisioned and notes column 6 lines
23-39 of Ganderton as showing that the device is checked to
ensure delivery.
While column 6, lines 23-39 of Ganderton does disclose
that the Ganderton device is checked for efficacy at a
delivery site (the back) of an animal (a rabbit), Ganderton
does not disclose that this is a test to determine the depth
of cut necessary to penetrate through the stratum corneum but
not penetrate the dermis. After all, the Ganderton device
would be effective (and thus pass the Ganderton test) whether
it penetrates the stratum corneum and not the dermis or
penetrates the stratum corneum and the dermis.
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