Appeal 2006-1127
Application 10/712,970
consider a pickup tube to be a necessary element
and not an optional one as the examiner indicates
[Reply Br. 7].
We do not disagree with the Examiner’s aforequoted position that
“removing the dip tube 34 from the device of Norman does not prevent the
pressure reduction at orifice 116 . . . [, and thus] liquid flow through
passageway 112 will perform the function of creating a reduced pressure that
draws the first liquid out of the cartridge and into the valve structure”
(Answer 8-9; emphasis added). However, as implicitly indicated by the
emphasized portion of this quotation, it is only after dip tube 34 is removed
that Norman’s device would physically possess the actual capability of
performing the claim 19 function of “allowing passage . . . to create a
reduced pressure that draws the first liquid out of the cartridge . . . without
the need for a dip tube.” Moreover, the issue of removing Norman’s dip
tube and thereby obtaining the capability of performing the claim function is
a question of obviousness under § 103, not anticipation under § 102.
Claims 20, 21, 23 through 25, all depend from claim 19 and,
therefore, stand or fall with claim 19.
Accordingly, we will not sustain the rejection of claims 19 through 21
and 23 through 25 under 35 U.S.C. § 102(b) as being anticipated by
Norman.
Independent claim 27, like independent claim 19, requires the valve
structure to allow “the second liquid to flow through the valve structure to
create a low pressure that draws the first liquid out of the cartridge and into
the valve structure without the need for a dip tube.” Thus, we will not
sustain the rejection of claim 27 as well as of claims 28, 29, and 31-33, all
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