Appeal No. 1999-1539
Application 08/584,118
Int'l Trade Comm'n, 126 F.3d 1473, 1477, 44 USPQ2d 1358, 1361
(Fed. Cir. 1997) and RCA Corp. v. Applied Digital Data Sys.,
Inc.,
730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984)).
The examiner rejects claims 1 to 9, 13 and 14 at pages 2
to 4 of the final rejection. The main contention between the
examiner and the appellants is that the nonplanar topography
on the gap side layer of the closure element and on the gap
side layer of the substrate element are of inverse shape so
that the gap is eliminated between the two layers. The
examiner asserts, final rejection at page 3, that "[a]lthough
not specifically recited in Sundaram, the layer (304) is seen
to be filled with a non-interactive material (to prevent the
lodging of material in the otherwise open gap area, as in
usual and well-known)." Appellants argue, brief at page 4,
that "[b]ecause gap 304 (in Sundaram) is not substantially
filled, and layer 312 is not deposited on the planar surface
of the closure, Sundaram fails to satisfy this test for
anticipation."
We disagree with the examiner’s position. We note that
the examiner has pointed to no place in Sundaram, or provided
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