Appeal No. 95-2600
Application 07/990,458
Claim 12 recites "a head band rotatably attached at opposite
ends thereof to the housing, the head band being capable of
folding over the housing." Appellant argues that "[t]he
references do not suggest a head band which can be folded over
the housing" (Brief, page 23) and "[s]ince the Examiner has
failed to allege that the head band would have been obvious, the
rejection of claims 12 and 13 should be reversed" (Brief,
page 23). The examiner clearly relied on Heilig as making
obvious the use of a head band (Final Rejection, pages 8-9). As
shown in figures 2 and 3, Heilig has a band 15 of cloth material
attached to two elastic side straps 16, which are attached to
rigid side straps 17 by buckles 18. The straps 17 are rotatably
attached to the housing as best shown at the right side of
figure 5. Note that claim 12 requires only that the head band be
attached to the housing and not to the side covers as recited in
claim 13. The band of Heilig is flexible and is therefore
capable of folding over the housing. None of the claims require
the head band to be rigid as disclosed. For these reasons, we
sustain the rejection of claim 12.
Appellant did not argue claim 13 in the main brief. The
examiner dropped the Schoolman reference from the statement of
the rejection of claim 13 in the Examiner's Answer (page 2).
Technically, this does not create a new ground of rejection. See
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