Appeal No. 2001-0261
Application 08/546,050
length to substantially match the curvature of said concha." The
rest of the limitation, "to allow attachment around said extended
portion of a cushion for establishing a seal between said
extended portion and the user's ear," is a statement of intended
use which does not expressly make the cushion part of the
combination, as evidenced by claim 2, but which structurally
limits the extended portion to being able to accept a cushion.
Thus, the extended portion need only be capable of attaching a
cushion. The limitation of the extended portion being curved
along substantially its entire length seems to require the whole
extended portion to be curved as shown in Fig. 4B.
While the outside surface of the cushion 16 in Sapiejewski
'387 and '868 is curved at the top, the extended portion of 14 to
which the cushion is attached is straight at the top and bottom.
Thus, the examiner erred in finding that the Sapiejewski
references teach "said extended portion being curved along
substantially its entire length to substantially match the
curvature of said concha" as recited in claims 1 and 17. The
anticipation rejections of claims 1-5, 7, 14-17, 20-25, 27,
29-34, and 43-45 based on Sapiejewski '387 and/or Sapiejewski
'868 are reversed. The obviousness rejections of claims 3, 4, 6,
10-13, 18, 19, 26, 28, 29, 35, and 37-40 based on Sapiejewski
'387 and/or Sapiejewski '868 do not cure the deficiencies with
respect to the rejections of claims 1 and 17 and are reversed.
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