Appeal Number: 2006-1935
Application Number: 09/726,953
that Kawasch, insofar as it applies to a method claim, uses its device to dehydrate the cornea, and
there is no suggestion to use it so as to not dehydrate the cornea. The appellants further
distinguish these claims from the apparatus claims in that structural capacity is not an issue in
these claims, which was a determinative issue in the apparatus claims above. We note that
Kawasch does indeed describe the process it uses as ultimately dehydrating the corneal flap. The
examiner made no rebuttal to this new separate argument to claims 12 through 14. Therefore, we
find the appellant's arguments to be persuasive.
Accordingly we do not sustain the examiner's rejection of claims 12 through 14 rejected
under 35 U.S.C. § 102(e) as anticipated by Kawesch.
CONCLUSION
To summarize,
• The rejection of claims 1 through 11 rejected under 35 U.S.C. § 103 as obvious over
Kawesch in view of Glockler is sustained.
• The rejection of claims 12 through 14 rejected under 35 U.S.C. § 102(e) as anticipated
by Kawesch is not sustained.
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR § 1.136(a).
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Last modified: November 3, 2007