Appeal No. 2003-1258 4
Application No. 09/745,757
THE REJECTION
Claims 12 through 14 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Gordon.
OPINION
We have carefully considered all of the arguments advanced by the appellant and
the examiner and agree with the appellant that the rejection of the claims under Section
103(a) is not well founded. Accordingly, we reverse the rejection.
THE REJECTION UNDER SECTION 103(a)
"[T]he examiner bears the initial burden, on review of the prior art or on any
other ground, of presenting a prima facie case of unpatentability." See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). It is the examiner’s
position that the reference to Gordon teaches that, “the rod having a recess that 42
provides a hole from the container 16 interior to its exterior, thus allowing for a fluid
passageway.” See Answer page 3. We disagree with the examiner’s analysis.
The claimed subject matter before us requires the presence of a displacement rod
describing part of its internal structure wherein, “said displacement rod further having a
cross hole and a passageway.” See claim 12. Accordingly, the rod in and of itself must
have both a cross hole and a passageway. Furthermore the rods cross hole must have “at
least a first position within said container to vent an undesired fluid through said
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