Appeal No. 1998-0318 Page 9
Application No. 08/539,466
system includes means for aspirating material from the sample tubes, Hulette evidences
no concern for dealing with micro-samples and the attendant problem of preventing
gouging of the micro-sample tube during insertion of a probe. The Charlton tube is used in
a centrifuge apparatus, and is tapered for the purposes of providing a reservoir for the
particulate material that moves outwardly during the centrifuge operation (column 1, lines
28-31) and allowing room within the diameter of the envelope of the sample tube for
radiation shielding surrounding this tapered internal portion of the tube (column 2, lines 13-
27). There would appear to be no reason why one of ordinary skill in the art would have
been motivated to replace the conventionally-shaped sample tube of Hulette, which
provides for optical scanning, with one shaped to accommodate radio-active particulate
material in a centrifuge.
As for Cole-Parmer, it is our opinion that it cannot positively be established that any
of the disclosed sample tubes includes a convexly curved interior wall portion. This being
the case, the rejection fails at the outset, for even if the required suggestion to combine the
teachings were present, the result would not be the structure recited in claim 23.
Considering the two secondary references collectively, rather than alternatively,
does not alter our conclusion.
We therefore will not sustain the Section 103 rejection of independent claim 23 or, it
follows, of claims 24-39, which depend therefrom.
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