Appeal No. 2004-0455 Page 3
Application No. 09/540,592
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
The appellant’s invention is directed to improvements in dispensing tips for
dispensing adhesive tissue sealants and other liquid preparations that require mixing of
multiple components immediately prior to use. Among the features recited in
independent claim 1 are a first rigid section having at least two lumens therethrough, a
second rigid section having an opening for dispensing material and comprising at least
one static mixing element, and a flexible section interposed between the first and
second rigid sections
wherein the flexible section has a preset bend so as to urge the first and
the second rigid sections towards a preset angle to one another.
The examiner has rejected claim 1 as being obvious1 on the basis of the
teachings of Antanavich taken in view of those of Tovey. In particular, the examiner
has found all of the subject matter recited in claim 1 to be disclosed or taught by
Ananavich, except for the flexible section having a preset bend. However, it is the
1The test for obviousness is what the combined teachings of the prior art would have suggested to
one of ordinary skill in the art. See, for example, In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881
(CCPA 1981). In establishing a prima facie case of obviousness, it is incumbent upon the examiner to
provide a reason why one of ordinary skill in the art would have been led to modify a prior art reference or
to combine reference teachings to arrive at the claimed invention. See Ex parte Clapp, 227 USPQ 972,
973 (Bd. Pat. App. & Int. 1985). To this end, the requisite motivation must stem from some teaching,
suggestion or inference in the prior art as a whole or from the knowledge generally available to one of
ordinary skill in the art and not from the appellant's disclosure. See, for example, Uniroyal, Inc. v. Rudkin-
Wiley Corp., 837 F.2d 1044, 1052, 5 USPQ2d 1434, 1439 (Fed. Cir.), cert. denied, 488 U.S. 825 (1988).
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