Appeal No. 2003-1491 Page 3
Application No. 09/473,834
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
The claimed subject matter
Claim 5, the only independent claim on appeal, reads as follows:
A method of dispensing viscous liquid contents from a flexible tube having
an open end and a crimped end, said method comprising:
dispensing a small amount of the contents of said tube to create a
depleted portion of said tube;
applying finger pressure to the crimped end of said tube to urge contents
from said crimped end to the depleted portion of said tube causing said crimped
end to become the depleted portion of said tube;
folding the depleted crimped end of said tube upon itself[2] to create a
folded portion of said tube and
securing said folded portion with an elastic band, separate and distinct
from said tube, stretched to encompass said folded portion; and
continuing to dispense the contents of said tube by applying finger
pressure on said folded portion,
removing the elastic band from the folded portion,
folding the folded portion upon the newly depleted portion and
securing the newly folded portion by re-encircling with said elastic band
and
repeating this sequence until the contents of said tube have been
dispensed.
2 In our view the phrase "upon itself" as used in the clause "folding the depleted crimped end of
said tube upon itself to create a folded portion of said tube" is inaccurate since the depleted crimped end
of the tube is not folded upon itself (i.e., the depleted crimped end ) but is folded upon an undepleted
portion of the tube to create a folded portion of the tube as shown in Figures 2 and 3. The appellant
should consider an appropriate amendment to claim 5 to remove this inaccuracy.
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