Appeal No. 1999-0414
Application No. 08/625,352
Finally, we turn to the rejection of claims 1, 11-13 and 25 under 35 U.S.C. §
102(b) as anticipated by Bergin.
The examiner relies on screw 35 of Bergin as the claimed “torque adjuster”
[claim 1] and “portion controller” [claim 11].
With regard to claim 1, we agree with appellants that screw 35 of Bergin is
not a “torque adjuster,” as claimed. There is no indication in Bergin that any
torque threshold is to be overcome in order to cause rotation of a pivot coupling the
headband and earphone. The apertures in the stirrups of Bergin, in cooperation
with screw 35, act to give a tighter or looser fit to the headset. But, we find no
indication in Bergin of a pivot having a torque resistance opposing the rotation of
the pivot that intercouples the headband and the earphone so that a torque
exceeding a predetermined threshold value is required for rotation. Further, we find
no “torque threshold level adjuster,” as claimed, included in the pivot.
Therefore, we will not sustain the rejection of claim 1 under 35 U.S.C.
§ 102(b) as anticipated by Bergin.
With regard to claim 11, the examiner’s position is that screw 35 may be
considered a “portion controller,” as claimed. Whether or not screw 35 is the
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