Appeal No. 2001-0550
Application No. 09/030,792
Masterson et al[.] method essentially irrigates the
uterus and at a temperature within applicant’s [sic,
applicants’] disclosed range, one would expect the same
results to occur for Masterson et al[.] as well as
applicant[s]. [Answer, page 5.]
As to the aspirating step, the examiner maintains that in
Masterson “a final withdraw step of the fluid is performed by a
vacuum (i.e.[,] aspiration) created by a tube connected to the
instrument lowered below the level of the uterus (column 11[,]
lines 20-25)” (answer, page 5).
While we appreciate the examiner’s positions in these
matters, we find ourselves in agreement with appellants that
Masterson does not anticipate method claim 1. Regarding the step
of presenting heated fluid to the target tissue to liquefy said
target tissue, we appreciate that Masterson’s temperature range
for heating liquid of from about 60°C to 100°C (140°F to 212°F)
is encompassed by appellants’ disclosed temperature range of
between 98.6°F and 250°F (specification, page 4). However, we
find no express disclosure that Masterson’s target tissue (i.e.
the lining of the hollow organ) is liquefied, and the examiner
has presented no convincing argument that the target tissue of
Masterson is necessarily liquefied. In this regard, mere
possibilities or even probabilities are not enough. See In re
Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA 1981).
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007