Appeal No. 2004-1945 Page 8
Application No. 09/524,213
In our view, the argued limitations of claims 24 and 31 (reproduced in bold
above) are statements of intended use and do not qualify or distinguish the apparatus
claimed over the apparatus disclosed by Farris. Clearly, the vial disclosed by Farris is
fully capable of being used to store a dry substance, to later activate the substance with
a liquid and then to transfer the substance from the vial into a syringe or cannula without
the need for a needle.
Since the subject matter of claims 24 and 31 is met by Farris for the reasons set
forth above, the decision of the examiner to reject claims 24 and 31 under 35 U.S.C.
§ 102(b) is affirmed.
Claims 25 to 30, 32, 33 and 35 to 38
Claims 25 to 30, 32, 33 and 35 to 38 which depend from claim 24 or claim 31
have not been separately argued by appellant. Accordingly, we have determined that
these claims must be treated as falling with their respective independent claim. See In
re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987). Thus, it
follows that the decision of the examiner to reject claims 25 to 30, 32, 33 and 35 to 38
under 35 U.S.C. § 102(b) is also affirmed.
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