Appeal No. 2002-0266 Page 8
Application No. 09/409,672
deposited upon the body site by the mixing of two ingredients. Even if one accepts at
face value the examiner’s position that all of the subject matter except for the tip shape
would have been obvious in view of these three references, the rejection is fatally
defective for the same reason as was the rejection of claim 25 for, as we stated above,
it is our opinion that the election of species statement is not an admission that all of the
tip shapes recited in the claim are interchangeable and obvious variants of one another.
In this regard, the examiner has not pointed out that any of the recited shapes are
present in the applied references.
The rejection of independent claim 35 and dependent claims 26-34, 52 and 54 is
not sustained.
Finally, claim 36, which depends from claim 35, has been rejected as being
unpatentable over Koreska in view of applicant’s admission, EP, JP and WO. Claim 36
adds the limitation that the accelerator or initiator recited in claim 35 is disposed in or on
the applicator tip. Adding the teachings of EP, JP and WO to Koreska does not
overcome the problem we pointed out with consideration of the election of species to be
an admission, and we will not sustain this rejection.
Remand To The Examiner
Unquestionably, the field of applicators for dispensing material from containers is
well developed. This application is remanded to the examiner for consideration of
determining whether the tip shapes recited in the claims on appeal are present in the
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