Appeal No. 1999-0757
Application No. 08/699,083
conclude that the combined teachings of Garrett and Buehler do
not establish a prima facie case of obviousness with respect to
the subject matter recited in these claims. 5
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103 rejection of claims 17, 32, 36, 41 and 42, of claims 18 and
19 which depend from claim 17, and of claims 39 and 40 which
depend from claim 36, as being unpatentable over Garrett in view
of Buehler.
Claims 43 and 44 recite a cannula and injection site. The
appellants contend (see page 9 in the brief) that these claims
require a cannula that includes an aperture defined by a blunt
end and that can be used with the injection site so as to allow a
septum to reseal upon removal of the cannula, and that neither
Garrett nor Buehler teaches or suggests such structure either
alone or in combination. Garrett, however, discloses this
structure in the form of syringe 60 having blunt end 58 and
injection site 30 having slit, resealable membrane or septum 42.
In other words, the subject matter recited in claims 43 and 44 is
anticipated by Garrett.
Lack of novelty, i.e., anticipation, is the ultimate or
epitome of obviousness and cannot be rebutted by evidence of non-
obviousness. In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569,
5 This being so, it is unnecessary to delve into the merits
of the appellants’ affidavit evidence of non-obviousness.
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