Appeal No. 2001-0073
Application 08/966,894
glued-on section of tubing, and there is no suggestion that
couplers may be provided in other locations (Br9-10).
The examiner responds that rearrangement of the components
of Erickson would meet the claimed limitations and McAffer is an
alternative coupler for transferring fluid (EA5). The examiner
earlier stated that the end product of appellants' invention and
Erickson are the same and that the claimed invention is merely an
obvious rearrangement of the parts in Erickson (EA4-5). The
examiner states that fitting 66 in Erickson is part of the
cartridge top panel via tube 62 and the tube inserted into the
cartridge is the same as appellants' concept of inserting a tube
portion into the cartridge (EA5-6).
We presume, like appellants, that the examiner's intended
position is that it would have been obvious to substitute the
luer fitting of McAffer for the in-line seal 66 of Erickson and
to mount the luer fitting integral with the top of the cartridge.
The examiner does not clearly address the question of motivation.
It appears that the examiner considers that it would have been
obvious to locate the in-line fitting (seal 66) in Erickson to be
integral with the top of the cartridge because this is a mere
rearrangement of parts. This is a mere conclusion based on a
disfavored per se rule, rather than on solid factual evidence and
obviousness reasoning, and is not persuasive. While we believe
that it was within the level of knowledge of one of ordinary
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