Appeal No. 95-0953
Application 07/976,328
Pfeiffer should produce the intended result that these claims
stand or fall together with claim 9; it is not an excuse to
treat all of the other dependent claims as standing or falling
together.
Technically, the case should be remanded to the examiner
for more fact finding with respect to the dependent claims.
However, since this appeal is several years old and since the
rejections of all claims are based on anticipation which is
strictly a fact question, we will make the findings in the
first instance.
Dufresne
Appellant argues that Dufresne does not have a
"transducer . . . positioned within the same acoustic pathway
as employed for acoustic auscultation" (emphasis added), as
recited in claim 1. Dufresne describes the transducer is
"located along the acoustic sound transmission path, typically
in or very near the chestpiece" (emphasis added) (col. 4,
lines 50-52). Appellant argues that the term "within" to
describe the transducer location patentably distinguishes from
Dufresne's description of "along" to describe the location
(Brief, page 6). We disagree.
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