Appeal No. 2001-2363
Application 09/073,022
As for the examiner’s rejection of dependent claim 25 under
35 U.S.C. § 103(a) based on Brony, we observe that while claim 25
requires the step of providing the plug with “a non-planar
external surface,” contrary to appellant’s apparent belief, this
recitation broadly encompasses any and all of the external
surfaces of the plug (i.e., top, sides and bottom) and not just
that portion of the top of the plug exposed on the exterior of
the stopper which is to be engaged by the end tip (41) of the
syringe. In that regard, we can see from Figures 3A-3F of the
application that appellant’s plug (30) is generally cylindrical
and thus has a “non-planar external surface,” in addition to the
non-planar external surface at the top of the plug where
protrusions (32-1 to 32-4) are located. Like appellant’s plug,
the plug or valve member (72) of Brony is apparently cylindrical
and will thus also have a “non-planar external surface.”
Since we consider that Brony actually anticipates the
subject matter of claim 25 on appeal, we are justified in
sustaining the examiner’s rejection of claim 25 under 35 U.S.C.
§ 103. As has been made clear by our reviewing Courts on
numerous occasions, anticipation or lack of novelty is the
ultimate or epitome of obviousness. See, in this regard, In re
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