Appeal No. 2006-1447 Παγε 6
Application No. 10/775,881
The examiner responds (answer, page 5) that “to the extent appellant's device is
capable of letting fluid flow through the passage or 'aperture' 130 when in the 'closed' or
'second'
position, as discussed on page 12 second paragraph of their specification, so is the
device of Vermolen et al as shown in figure 3.” The examiner adds (answer, page 6)
that:
even with consideration given to appellant's argument that
with the membrane 78 in the “closed position”, or firmly
seated against element 96, that fluid cannot pass through
108 the first chamber of Vermolen et al. can be interpreted
as 36, the second chamber at 112 or 110, the “valve” can be
interpreted as comprising 96,98,78,106,114, which further
comprises the membrane 78, as broadly claimed. Fluid is
therefore capable of flowing between the “first” and “second”
chambers through the hole 106 defined by membrane 78.
Appellants (reply brief, page 3) repeat the argument that
"aperture 108 does not allow fluid flow when membrane 78 closes the passage since
aperture 108 is closed when the fluid passage is closed.”
From our review of the record, we note at the outset that appellants take the
position that Vermolen does not teach or suggest that the membrane defines an
aperture to allow a specified amount of fluid flow between the first chamber and the
second chamber when the membrane is in the second (or closed) position. Before
turning to the Vermolen reference, we note that the term “closed” as used by appellants,
refers to the membrane being moveable to a second (or closed) position that closes the
fluid passage while allowing a specified amount of fluid flow between the first chamber
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