Appeal No. 2001-0661 7
Application No. 08/480,232
The anticipation rejection of independent claim 34 and claims 40-47 that depend
therefrom cannot be sustained for essentially the same reasons as discussed above in
connection with claim 1. In this regard, the limitation of claim 34 calling for an
electrotransport agent delivery device comprising, among other things, at least two
“substantially rigid regions” and flexible means extending between the regions to permit
relative movement of the rigid regions finds no clear response in Sibalis.
We reach an opposite conclusion with respect to the anticipation rejection of
independent claim 21 based on Sibalis. Appellants’ only argument in favor of claim 21 is
that Sibalis does not disclose two rigid regions. However, this argument fails at the outset
with respect to claim 21 because it is predicated on a limitation that does not appear in the
claim. See In re Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982) (features not
claimed may not be relied upon in support of patentability). Unlike claims 1 and 34, claim
21 does not require that the device comprise at least two rigid regions. Instead, it merely
requires that the device comprises “at least two regions.” The individual “petals” or body
sections of the Figure 14-16 embodiments clearly comprise “regions” as called for in claim
21.
The anticipation rejection of claims 27-29 that depend from claim 21 likewise will be
sustained because these claims have not been separately argued. In any event, the thin
webs connecting the “petals” or body sections of the Figure 14-16 embodiments of Sibalis
reasonably appear to meet the flexible means limitations set forth in claims 27-29.
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