Appeal No. 95-2600
Application 07/990,458
by Gale" (Examiner's Answer, page 12). Appellant argues that
"the references provide no suggestion for an earphone which can
both slide along an axis and also rotate about that axis" (Brief,
page 20) or "any means for retaining the earphone at a
predetermined angle" (Brief, page 21).
We reject the examiner's application of Gale to claim 8.
Since the earphones in Gale are not mounted to the side pieces of
the goggle, the earphone mounting in Gale has little
applicability to the claimed subject matter and we fail to see
how Gale would have suggested the subject matter of claim 8. The
rejection of claim 8 is reversed.
In our opinion, however, claim 8 would have been obvious
over Suwa and Heilig as applied to claim 7, without the addition
of Gale and we therefore enter a new ground of rejection under
37 CFR § 1.192(b). Heilig states (col. 2, lines 45-51): "Each
of these ear phones is adjustably supported by the casing 10, in
this instance by a rod 30 hinged to the ear phones 27, for
lateral adjustment, which rod is slidable in a socket 31 which
carries a set screw 32 for holding the rod in proper position to
bring its ear phone 27 to a point adjacent to the user's ear."
The earphones can slide in a forward or rearward direction as the
rod 30 moves in and out of the socket 31. Although the bow
limitation of claim 7 is not argued, the relatively large
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