Appeal No. 2006-1603
Application No. 10/646,675
Thus, we find that the appellant’s arguments that the examiner failed to present a
prima facie case are unpersuasive and we sustain the examiner’s rejection of claim 18.
The appellant has argued that claim 9 is patentable because its underlying claim
18 is patentable and has provided no separate arguments for patentability of claim 9.
Accordingly, claim 9 falls with claim 18 and we similarly sustain the rejection of claim 9,
although we make no opinion regarding the merits that might have been presented
regarding the separate patentability of claim 9.
New Grounds of Rejection Under 37 CFR § 41.50(b)
Pursuant to 37 CFR § 41.50(b), we enter the following new ground of rejection:
Claims 18 and 8 are rejected under 35 U.S.C. § 102(b) as being unpatentable
over Metcalf, which fully incorporates the contents of Burchette by reference [See
Metcalf col. 5 lines 40-48].
Metcalf’s Fig. 4 and corresponding description at col. 5 lines 14-16, especially as
contrasted with its Fig. 5 and corresponding description at col. 5 lines 31-33, portray a
monolithic obturator with a pointed distal end for cutting tissue and an enlarged
circumference proximal end for grasping, and which enlarged circumference enables
the holder to apprehend the orientation of the tip in three dimensional space relative to
the grasped end. Metcalf shows a kit of such obturators. [See Fig. 1] As further textual
evidence of this anticipation, Burchette, fully incorporated by reference within Metcalf,
teaches an obturator that
is preferably a unitary, one-piece structure made of polymeric
material, either thermoplastic or thermoset and from a process which
results in the final manufacture as a single article of manufacture.
Examples of suitable polymeric materials include, without limitation,
9
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