Appeal No. 2005-2350
Application No. 10/056,352
No arguments are presented as well as to any dependent claim
depending from either independent claim 22 or independent claim
29.
At the outset, we note that appellants have not argued
against the combinability of Wijnschenk and Moh within 35 U.S.C.
§ 103 within the first stated rejection and the addition of
Mizobuchi in the second stated rejection. Therefore, we construe
the absence of the arguments thereto as conceding to the
examiner’s arguments that the applied prior art is properly
combinable within 35 U.S.C. § 103.
We also note initially that the claimed tube body in claim
32 is stated to be of unitary construction and is said to
comprise an enclosed sidewall and an integral bottom together
defining a tubular container having an open top. The claim does
not necessarily recite or require that the entire structure of
the test tube be of one piece construction. The claim appears to
require that the enclosed sidewall and a bottom be made integral
thereto.
We turn first to the arguments in the reply brief where
appellants urge that the proper reading of Wijnschenk reveals
that the carrier part 6 is not the bottom of the container
itself, but it is a separate item attached to the bottom of the
3
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