Appeal No. 95-3184
Application 07/981,910
b) under 35 U.S.C. § 103 as being unpatentable over
Emerson.3
Reference is made to the appellant’s main and reply briefs
(Paper Nos. 32, 35 and 37) and to the examiner’s main and
supplemental answers (Paper Nos. 34, 36 and 38) for the
respective positions of the appellant and the examiner with
regard to the merits of these rejections.
The 35 U.S.C. § 112, first paragraph, rejection rests on the
examiner’s determination that the appellant’s originally filed
specification “fails to provide support for the phrase ‘solely by
the successive addition of the small volumes of gas’ as recited
in claim 33" (main answer, pages 3 and 4). According to the
examiner, this claim limitation “states that airway pressure is
increased solely by the addition of small volumes of gas” (main
answer, page 6).
This explanation indicates that the rejection is based on an
alleged failure of the specification to comply with the written
3In the final rejection (Paper No. 28), the examiner
relied upon the combined teachings of Emerson and U.S. Patent No.
4,096,875 to Jones et al. to support the 35 U.S.C. § 103
rejection of claims 33 through 39. It is apparent from the
statement and explanation of this rejection in the main answer
(Paper No. 34), however, that the examiner is no longer relying
on Jones et al. for this purpose.
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