Appeal No. 2003-1450 5
Application No. 09/640,325
container onto the hands of the user. See column 1, lines 17-27 and 38-46. In our view,
Franta provides ample motivation for use of its medical applicator in dispensing the
ointment of Moss by disclosing a medical applicator which not only provides an alternative
to performing the application of the ointment disclosed in Moss by hand, but
simultaneously prevents weeping and phase separation.
As to the applicator itself, we find no argument in the Brief that the applicator of
Franta fails to comply with any of the requirements of the claimed subject matter. The
only substantive argument presented by the appellant is that in Franta, “the slots or holes 8
extend transversely and do not extend longitudinally . . . . ” See Brief, page 7. The
claimed subject matter however, in contrast, only requires “elongated slots” and contains
no requirement directed to the orientation of the slots.
Furthermore, the appellant submits that, “Appellant’s invention is designed to be
used mostly in the upside down position and is not designed to be used in upward or right
side up position such as a deodorant stick.” See Brief, page 6. We find however, no
limitation in the claimed subject matter directed to the orientation of the applicator at the
time of application. In addition, we find no limitation in the disclosure of Franta limiting
the use of the disclosed application to any specific position.
Finally, the appellant argues that, “the utilization of a domed applicator portion
made from a plastic which is residue resistant and non-porous is of a particular advantage. .
. . ” See Brief, page 7. In this respect we find that Franta discloses a domed applicator,
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