Appeal No. 2003-1450 4
Application No. 09/640,325
of the Brief as corresponding to the specific claims associated with each ground of
rejection. Accordingly, we select claims 1 and 8 as representative of the claimed subject
matter and limit our consideration thereto. See 37 CFR §1.192(c)(7)(2002).
The Rejection of claims 1-7 and 9
It is the appellant’s position that the references cannot be combined and that,
“nowhere in Moss does it suggest that the ointment therein would be put into some kind of
applicator in the sense of Appellant’s invention.” See Brief, page 6. We disagree.
Moss is directed to an ointment for treating skin irritations such as diaper rash. See
Abstract and column 1, lines 5-16. Moss states that application of the ointment, “may be
performed by hand, but preferably with a suitable medical applicator or swab.” As the
examiner has stated however, “Moss does not expressly teach the specific applicator that
can be used for administration of the composition . . . . ” See Answer, page 4.
Accordingly, the use of a well known medical applicator suitable for application of
an ointment would have been obvious to the person having ordinary skill in the art. In this
respect the examiner has relied upon a reference to Franta. We find that Franta is directed
to a dispenser for gels or creams. See column 1, lines 4-6. We find the gels or creams
include pharmaceuticals. See column 1, lines 30-31. We find that the particular
dispensers disclosed by Franta are designed to prevent weeping such that there is no liquid
phase separation of the cream to flow through the apertures and down the sides of the
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