Appeal No. 2001-0547 Page 5
Application No. 08/689,400
Nicholas is directed to a surgical apparatus for manipulating body tissue in the
uterine cavity. In the embodiment shown in Figure 18, to which the examiner has
referred (Answer, page 5), Nicholas discloses an elongated tubular body 272 having a
central passage with an opening at the proximal end to allow fluid to be delivered and
an opening at the distal end to allow fluid to be discharged (column 9, lines 14-21). A
conical cervical seal 222 is slidable along the tubular body, and an elongated handle
212 is provided at the proximal end of the tube to allow the device to be manipulated.
However, Nicholas does not disclose or teach two of the limitations recited in
independent claim 18. The first is that the cervical seal be “slidable along the entire
length of the tubular body.” In the Nicholas device, the proximal portion of the tube
passes through handle 212, that is, the handle surrounds the tube, and thus precludes
the cervical seal from sliding along the entire length of the tube. The second deficiency
is the requirement that the cervical seal have “a neck at the distal end of said seal
engaging the elongated body to avoid any leakage” at the interface of these two
elements. While there appears to be a neck on the proximal end of the Nicholas seal
as shown in Figure 13B, no description of this element is provided and, of course, it is
not located at the distal end of the seal and therefore doesn’t meet the terms of the
claim.
Since all of the elements recited in claim 18 are not disclosed or taught by
Nicholas, we agree with the appellants that the rejection of independent claim 18 and
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