Appeal No. 95-1744
Application 08/216,543
Exhibit A, an attachment to a declaration by Martin which was
included with the prior art statement filed on March 23, 1994
(Paper No. 2),
Claims 8-14 and 16 stand rejected under 35 U.S.C. § 103 as
being unpatentable over the combined disclosures of Exhibit A,
Halstead, McNeil and Lunas. It is the examiner’s position that
Exhibit A is the primary reference showing basically
Applicant’s structures recited by the claim with McNeil
and Lunas (teaching threaded) showing a releasable
capture chamber as recited by the claim [sic, claims 13
and 14]. The only distinction is the shape of the
nasal inserted end which is considered a matter of
obvious subjective design as stated in the previous
Final Rejection. Again it is stated that what
constitutes a comfortable fit is obviously a matter of
design as to what constitutes a comfortable fit for a
desired purpose and would accordingly be [sic, have
been] obvious to a person of ordinary skill in the art.
[Answer, page 4.]
We do not support the examiner’s position. The examiner
recognizes that in Exhibit A the nasal conduit free end does not
have “the general configuration of a hollow triangular prism” as
set forth in independent claim 8 but, nevertheless, seeks to
dismiss the claimed configuration as a “matter of obvious
subjective design.” We must point out, however, that page 6 of
the specification states that
the free end 16 of the nasal conduit 15 is constructed
in a way such that it fits more appropriately into the
vestibule of the human nose, providing a comfortable,
sealed fit of the nasal conduit in a human nostril.
The particular nasal conduit free end 16 construction
illustrated in FIGURES 1 and 2 allows a greater area of
3
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