Appeal No. 2005-2410 Page 4
Application No. 08/928,272
both ends (i.e., the cross-section is round). Thus, the container of Burns anticipates
the subject matter of claim 1 as presented.2
Claims 6 and 9 stand rejected under 35 U.S.C. § 103(a) over Burns.
Appellant has not specifically challenged the obviousness of using a partition
with a conical shape or the selection of particular dimensions for the specimen
container as asserted by the Examiner. Thus, it appears that Appellant is relying on
the arguments presented in response to the previous rejection. These arguments are
not sufficient to overcome the Examiner’s rejection for the reasons presented above
and the reasons presented in the Answer.
CONCLUSION
For the foregoing reasons and those set forth in the Answer, giving due weight
to Appellant’s arguments, we determine that the preponderance of evidence weighs in
favor of the Examiner’s rejections. Accordingly, the Examiner's rejections under 35
U.S.C. §§ 102(b) and 103(a) are affirmed.
2 The description of a test tube, such as routinely used in basic Chemistry class, as “a cylindrical
tube with a rounded end” does not differentiate between the top open end and the closed bottom end.
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