Appeal No. 2005-0777
Application No. 10/081,881
is not supported by any evidence of record. See In re Lee, 277
F.3d 1338, 1344-45, 61 USPQ2d 1430, 1434-35 (Fed. Cir. 2002).
For the foregoing reasons and those stated in the Brief and
Reply Brief, we determine that the examiner has not established a
prima facie case of obviousness in view of the reference
evidence. Therefore we cannot sustain the examiner’s rejections
of claims 1-8 under 35 U.S.C. § 103(a) over Hahn or Kataoka in
view of the admitted prior art as shown by Figures 5-7 and
described on pages 1-4 of the specification.
B. The New Grounds of Rejection
Pursuant to the provisions of 37 CFR § 41.50(b), we enter
the following new grounds of rejection:
(1) claims 4 and 7 are rejected under 35 U.S.C. § 112,
second paragraph, for failing to particularly point out and
distinctly claim the subject matter appellants consider their
invention. Claims 4 and 7 both recite that the deformable tube
comprises a “soft vinyl.” The legal standard for determining
whether the language of a claim is definite under Section 112,
paragraph two, is whether one of ordinary skill in this art would
have been reasonably apprised of the scope of the claim, when
read in light of the specification. See In re Warmerdam, 33 F.3d
1354, 1361, 31 USPQ2d 1754, 1759 (Fed. Cir. 1994). Appellants’
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