Appeal No. 2005-0980 8
Application No. 09/818,228
approximately 4 to 40 liters per minute”. See the Brief, page 9, together with claim 1.
However, as indicated supra, the appellant has not disputed the examiner’s finding that the
hospital room oxygen supply in Lathi “is inherently capable of delivering oxygen with a flow
rate of 4-40 L/min.” Thus, we again determine that the claimed gas source embraces the
hospital room oxygen supply described in Lathi. The appellant simply has not
demonstrated that the functional limitation relating to the flow rate would have rendered the
claimed gas source structurally different from that described in Lathi. Schreiber, 128 F.3d
at 1477, 44 USPQ2d at 1432; Casey, 370 F.2d at 580, 152 USPQ at 238.
Thus, we determine that the preponderance of evidence weighs most heavily in
favor of obviousness of the subject matter of claims 1, 2, 6, 8, 11 through 15, 20, 23 and
28 within the meaning of Section 103(a). Accordingly, we affirm the examiner’s decision
rejecting claims 1, 2, 6, 8, 11 through 15, 20, 23 and 28 under Section 103.
REJECTION BASED ON LETHI AND BOWDEN
As evidence of obviousness of the subject matter defined by claims 3 and 16 under
35 U.S.C. § 103, the examiner relies on the combined disclosures of Lethi and Bowden.
See the Answer, page 8. The disclosure of Lethi is discussed above. As acknowledged
by the examiner (Answer, page 8), Lethi does not disclose that its nasal catheter has “a
plurality of markings indicating a series of common lengths...” as required by claim 3 on
appeal.
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