Appeal No. 2001-1466
Application 09/055,899
the arcuate wall into the bottom member 42. The cap
34 is then removed, permitting the applicator 46 to
expand so as to assume the position shown in Fig. 1,
at which time the applicator 46 becomes about half-
saturated due to the fact that the expanded
applicator 46 now has a much greater volumetric
capacity than it had when it was compressed. . . .
By properly selecting the porosity and normal size
of the applicator 46 in relation to the volumetric
size of the cup-like section 42 and the viscosity of
the liquid with which it is to be used, it is easily
possible to have the applicator 46 retain just the
right amount of liquid for covering the object to
which the liquid is to be applied [page 1, column 1,
line 72, through page 1, column 2, line 56].
As conceded by the examiner, Schultz does not meet the
limitation in independent claim 1 requiring the applicator to
be “saturated with the product when second end [which forms
the application surface] moves from said second position
[inside the reservoir] to said first position [outside the
reservoir].” The examiner nonetheless concludes that
[b]ecause the Schultz applicator is intended to
function in a manner identical to that claimed with
the exception of the “saturation” limitation, the
burden is on appellant to establish that the
“saturation “ limitation is critical to
patentability. See In re Aller, 220, F.2d 454, 457
(C.C.P.A. 1955). Appellant has not done so [answer,
page 9].
The examiner’s reliance here on In re Aller, 220 F.2d
454, 456, 105 USPQ 233, 235 (CCPA 1955) is not well taken.
Aller stands for the principle that in situations where a
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