Appeal No. 2003-1450 6
Application No. 09/640,325
Abstract, and column 2, lines 39-41. We find that the domed applicator is prepared from
a plastic, i.e., polypropylene. See column 3, lines 50-53. We further note however, that
there is no requirement in the claimed subject matter that the domed applicator made from
a plastic be non-porous or residue resistant.
Based upon the above reasons, we have determined that the examiner has
established a prima facie case of obviousness. Furthermore, upon reconsideration of all the
evidence and argument submitted by appellant, we have, determined from the totality of
the record that the preponderance of the evidence weighs in favor of obviousness within
the meaning of 35 U.S.C. § 103. See In re Oetiker 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Accordingly, the decision of the examiner is
sustained as to claims 1through 7 and 9, claim 1 being representative of the rejection of
Moss in view of Franta and Moss in view of Franta and Dornbusch.
In this respect a discussion of Dornbusch, directed to a dispenser containing a cap is
not needed in reaching our decision inasmuch as the limitations further disclosed by
Dornbusch are not required by claim 1 which is representative of the claimed subject
matter.
The Rejection of Claim 8
In contrast to the claimed subject matter previously discussed, the subject matter of
claim 8 further requires that, “said elliptically domed applicator portion is made from a
plastic containing an antibacterial agent.” In order to meet this limitation, the examiner
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