Appeal No. 2000-0890 Page 4
Application No. 08/345,215
The references relied upon by the examiner are:1
U. K. Pat. App. (GB’144) 2,194,144 Mar. 2, 1988
U. K. Pat. App. (GB’443) 2,229,443 Sep. 26 1990
Two patents discussed by this merits panel are:
Rolf 5,804,213 Sep. 8, 1998
Rolf 6,406,712 Jun. 18, 2002
Claims 13 through 33 stand rejected under 35 U.S.C. § 103. As evidence of
obviousness, the examiner relies upon the combined disclosures of GB’443 and
GB’144.2 We reverse. We also raise other issues for the examiner and appellants to
consider upon return of the application to the jurisdiction of the examiner.
DISCUSSION
1. Claims 13-18
In relevant part, the package of claim 13 requires flexible walls, which comprise
two different sheets located in two portions of the package for permitting the introduction
of different sterilizing agencies. The first flexible sheet allows the introduction of a first
sterilizing agency while the second sheet allows for the introduction of a second
sterilizing agency. The second sheet has a different composition from the first sheet.
1 The examiner also makes reference to disclosures appearing at pages 7-7a of the specification at pages
3-4 of the Examiner’s Answer. However, did not rely upon these passages in rejecting the claims in the
final Office action (Paper No. 33). The propriety of the examiner relying upon new evidence during an
appeal proceedings is not apparent. Accordingly, we have limited our consideration of the examiner’s
position as it relies upon GB’144 and GB’443.
2 The examiner states at page 3 of the Examiner’s Answer that the claims are rejected on the basis of
GB’443 alone. We consider this to be an inadvertent mistake on the part of the examiner as it is clear
from the record that the examiner relies upon the two documents together.
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