Appeal No. 2002-0266 Page 6
Application No. 09/409,672
the view that the appellant’s statement that claims 25-36, 38-46, 48 and 52-55 are
generic and all read on the elected species in Paper No. 6 are an “admission” that “any
of the tip shapes and materials disclosed in the specification are interchangeable with
the one specifically shown in fig. 3, i.e, they are all obvious variants of one another”
(Paper No. 11, page 5). The appellant argues in response that the statement to which
the examiner makes reference was not an admission, and that the examiner is re-
characterizing the election of species as such because he has been unable to cite
references disclosing the various embodiments set forth in the claims.
Independent claim 35 recites an applicator body, a frangible vial held within the
applicator body and containing a liquid adhesive, and a porous applicator tip having “a
shape . . . selected from the group consisting of dome-shaped, conical, chisel and
polygonal shapes.” Koreska discloses a dispenser containing a frangible vial, and an
applicator tip that is not described but appears to be in the shape of a cylinder. Thus,
Koreska fails to disclose an applicator tip having any of the four shapes which
constitute the group named in the claim. We agree with the appellant that the intent of
the election of species was to identify those claims which the appellant believed
corresponded to the species that was elected. It also is noted that while not pictured,
all of the tips recited in claim 35 are mentioned in the specification.
The examiner has provided no authority, and we know of none, supporting his
thesis that the election of species statement made by the appellant is an admission that
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