Appeal No. 2003-1258 5
Application No. 09/745,757
passageway to the outside of said container.” See claim 12.
In contrast Gordon is directed to a sampler 10 having a, “rod 34 pushed into
second body 16 until recess 42 and passageway 32 are longitudinally coincident (FIG.
13).” See Gordon, col. 5, lines 19-21. This arrangement provides a gap through
passageway 32 such that when the sampler 10 is tilted it enables solvent to leak from the
apparatus. It is however, the second body 16 relied upon by the examiner as, “a container
having a first end and a second end, and being made of a substantially rigid material,”
Answer, page 2, which provides for the passageway through which the solvent passes to
the outside of the container. This passageway however, as explained above is an integral
part of the container and not of the displacement rod as required by the claimed subject
matter. Accordingly, the sampler structure disclosed by Gordon does not meet the
requirements of the claimed subject matter.
Based upon the above analysis, we have determined that the examiner’s legal
conclusion of obviousness is not supported by the facts. "Where the legal conclusion is not
supported by [the] facts[,] it cannot stand." In re Warner, 379 F.2d 1011, 1017, 154
USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968), reh’g denied,
390 U.S. 1000 (1968).
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007