Appeal No. 97-0082
Application No. 07/993,718
Keller, supra. Although the appellants are correct in noting
that Ranford provides openings 31 in the neck flange in order to
view the stoma site, there is, nevertheless, a recognition by
Ranford of the need to view this site. Kalt in the embodiments
of Figs. 5a, 5b, 6a and 6b teaches that tracheostomy tube holders
should be constructed at least in part of transparent materials
in order that the area of the stoma site can observed without
removal of the tracheostomy tube holders (note column 1, lines
17-34; column 7, lines 4-7). In our view, a combined
consideration of Ranford and Kalt would have fairly suggested to
the artisan to make the neck flange of Ranford, as modified by
Bales, of a transparent material in view of the teachings of Kalt
in order to further enhance the ability to view the stoma site.
Accordingly, we will sustain the examiner’s rejection of claims 8
and 18 under 35 U.S.C. § 103 based on the combined teachings of
Ranford, Bales and Kalt.
Treating now the rejection of claims 9 and 10 under
35 U.S.C. § 103 as being unpatentable over Ranford in view of
Bales and Kalt, obviousness under § 103 is a legal conclusion
based on factual evidence (In re Fine, 837 F.2d 1071, 1074,
5 USPQ2d 1596, 1598 (Fed. Cir. 1988)) and “[a] rejection based on
section 103 must rest on a factual basis, and these facts must be
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