Appeal No. 1998-2521
Application No. 08/184,212
35 U.S.C. § 103 as being unpatentable over Crosbie in view of Austin and the Ohio
Chemical Catalog (Page 40).
2. Claims 10 through 18 and 25 through 33 stand rejected under 35 U.S.C. § 103
as being unpatentable over the prior art applied in the rejection of claims 1-9 and further
in view of Cheng.
With regard to claim 1, the examiner’s position is as follows:
The patent to Crosbie teaches a medical tube holder apparatus 10 comprising a
one-piece clamp means configured transversely to engage frictionally about the
circumference of a medical tube, with opposing interlocking extremities 16 and
28 and opposing attaching means (see Figure 1) respectively adjacent each said
extremity for the purpose of affixing a harness means (see Figure 8). Crosbie
therefore teach appellant’s device as is broadly recited in claim 1 with the
exception of specifically teaching the use of naso tracheal tubes. However,
Crosbie does teach that typical tube sizes includes 2.5-9.0 mm (column 2, lines
46+). ET tubes such as the White Opaque Plastic tube sold by Ohio Chemical
(catalog, page 40) range in size from 2.5-9.0 mm and are used for both mouth and
nose insertion. Clearly then, the Crosbie device will work with naso and mouth
inserted ET tubes. Austin teach that both naso and oral ET placement is known to
those of ordinary skill in the art, and that the same tube holder can be used for
both. As such, and given that the Crosbie device can accommodate naso ET tube
diameter, it would have been obvious to one of ordinary skill in theart to have
used the Crosbie device with both naso ET and oral ET tubes.
We have carefully considered appellant’s arguments supporting patentability
of claim 1 as set forth on pages 21-26 of the main brief.3 However, we are not persuaded
that the rejection of claim 1 is improper.
3 With regard to claims 1-9, appellant refers at various places in the main brief (see, for example, page 28)
to a rejection under 35 U.S.C. § 102(b). However, there is no § 102(b) rejection of any appealed claim
before us for review.
3
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