Appeal No. 2003-0429
Application 09/282,862
With respect to dependent claim 10, appellants argued
this claim together with claim 4. Therefore, for reasons
discussed above with respect to claim 4, we will sustain the
examiner’s rejection of claim 10. With respect to dependent
claim 11, we have carefully reviewed the record in this case, and
it appears to us that the examiner has never addressed the
specific limitation of claim 11. As noted above, in making the
rejection, the examiner lumped claims 6 and 8-11 together and
asserted that these claims were rejected for the same reasons as
claims 1-4. The specific recitation of claim 11, however, does
not appear in claims 1-4. Therefore, the examiner has never
addressed the limitation of claim 11 on this record. The
examiner, therefore, has failed to establish a prima facie case
of the obviousness of claim 11. Thus, we will not sustain the
examiner’s rejection of claim 11.
We now consider the rejection of claim 5 and 7 based on
the teachings of Bolle, Rambaldi and Lapsley. The examiner
asserts that although Lapsley only teaches a blood flow sensor,
it would have been obvious to the artisan to incorporate an
oxygen sensor as well [answer, pages 7-8]. Appellants argue that
there is no motivation to combine the references in the manner
proposed by the examiner. Appellants also challenge the
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