Appeal No. 2006-2699
Application No. 09/915,494
2. ANTICIPATION
Claims 74, 75, 79, 85-92, and 94-102 stand rejected under 35 U.S.C.
§ 102(e) as anticipated by Cui.1 The Examiner states that Cui describes a
device for collecting and testing a fluid specimen, the device having “a first
compartment (chamber) for fluid collection”; “a second compartment
(reservoir) for receiving a portion of the fluid”; and “a valve interposed
between the first compartment and the second compartment (Fig. 1 and Fig.
9).” (Answer 3-4.) The Examiner argues that the “valve comprises a well
(22) (compartment) for holding an aliquot of the specimen” and that “the
second compartment (reservoir) is spaced to allow receipt of a test device
such as a test strip (col 5).” (Answer 4.)
The Examiner also argues that, in Figure 2, Cui depicts a valve
comprising “a well (valve compartment) in fluid communication with the
chamber. One skilled in the art would recognize that when the valve is
actuated that the well will be horizontal at the 3:00 . . . position (second
position) (would not be in fluid communication with the chamber or the
reservoir) and then proceed to the 6:00 . . . position in which the well (valve
compartment) would be in fluid communication with the reservoir and not
the chamber.” (Id.)
In addition, the Examiner states that the recitation “‘the valve being
inoperable after a first actuation’ . . . is not given patentable weight because
it is [the] intended use of the valve.” (Id.) The Examiner also argues that,
because Cui discloses “structurally the same device and valve as recited in
1 Cui, U.S. Patent No. 6,576,193 B1, issued June 10, 2003.
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