Appeal No. 2001-0547 Page 10
Application No. 08/689,400
exiting through the proximal end of the tubular member, thus eliminating the need for a
one way valve.
We therefore agree with the appellants that Swor and Meador fail to establish a
prima facie case of obviousness with regard to the subject matter of claims 1, 2 and 4,
and we will not sustain this rejection. We reach the same result, for the same reason,
with regard to dependent claim 3, which was separately rejected as being unpatentable
over Swor and Meador.
Claim 20 stands rejected as being unpatentable over Nicholas. This claim
depends from independent claim 18 through dependent claim 19, both of which were
rejected as being anticipated by Nicholas. We did not sustain the rejection of claims 18
and 19, and considering Nicholas anew under Section 103 does not alter the fact that
Nicholas fails to disclose or teach the seal slidable over the entire length of the tubular
body, or the neck positioned at the distal end of the seal, which also are required in
claim 18. Nor are we of the opinion that the evidence adduced by the examiner
supports the conclusion that it would have been obvious to one of ordinary skill in the
art to modify the Nicholas device to alleviate these deficiencies. This being the case,
we will not sustain the rejection of claim 20.
The rejection of claim 21, which depends from claim 18, on the basis of Nicholas
in view of Swor, also is not sustained. While Swor discloses an elongated tubular body
having a tip that is closed and rounded, Swor does not overcome the deficiencies found
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