Ex parte DIEKEN - Page 6

          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              
               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.                                                             

               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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