Monday, November 25, 2013

Suppository goes no where

The appellant Anliker lost on obviousness on claims directed to "A suppository package."

PTAB noted

It is well established that while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997). “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). Here, because Voss discloses a package with an opening notch 22 (see Ans. 9) and Gordon’s pouch 17 is easily opened at 26 (see Ans. 6), we agree that the Examiner is on solid ground to conclude that the package of Voss as modified by Gordon is capable of being opened simultaneously, as called for by claim 20. See In re Spada, 911 F.2d 705, 708 (Fed Cir. 1990).


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