Appeal No. 1999-1326
Application No. 08/413,294
examiner has failed to establish a prima facie case of obviousness within the
meaning of 35 USC § 103 of the subject matter of the claims. Therefore, we
reverse the rejection of claims 1 – 16 under 35 U.S.C. § 102(b) as anticipated by
or, in the alternative, under 35 U.S.C. § 103 as unpatentable over Mull.
Other Issues
Upon return of this application to the examining group, we would urge the
examiner to step back and reconsider the relevance of U. S. Patent 3,915,806,
issued October 28, 1975 to Horlach. This patent is of record in the case and was
included with the Information Disclosure Statement filed September 30, 1996
(Paper No. 9) and would reasonably appear to disclose “a disposable kit for
collecting, holding and transporting biological specimens” (Abstract) “in a flat
elongated resilient pouch” (col. 1, lines 50-51) wherein “[a] sealed chamber
containing a culture transport medium is formed at the lower end of one of the
compartments, preferably by joining the two sheets along a transverse line
extending across the compartment. The upper end of the sealed chamber is
adapted to be easily ruptured.” (Col. 1, lines 57-62). Horlack states that, after the
sample is collected, the swab “is reinserted into the compartment having the
chamber at its lower end and thrust through the rupturable closure and into the
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