Appeal No. 97-2019 Page 6
Application No. 08/430,196
in which a person in the tub is in a reclining position. It
is appellant’s position that the Ekman reference will have the
person in the tub reclining in both positions due to the long
seat and sloping back. We do not agree. In our view, Ekman
clearly discloses at col. 2, line 68 to col. 3, line 4 and
depicts in figure 1 a position of the tub in which the person
in the tub is in the sitting position.
In view of the foregoing, we will sustain the examiner’s
rejection of claim 1 under 35 U.S.C. § 103 as unpatentable
over Ekman in view of Wakenshaw and Cuthbertson.
In regard to claim 2, the appellant argues that Wakenshaw
discloses a fluid control means to achieve recirculation of
water in the tub and does not suggest multiple inlets and
outlets for different treatments of different portions of the
body. This argument is not persuasive for two reasons.
Firstly, appellant cannot successfully attack a rejection
based on a combination of references by attacking the
references individually. Id at 1097. In this regard,
Cuthbertson has been cited for teaching multiple outlets.
Secondly, the argument is not commensurate with the scope of
claim 2 which does not recite that the outlets and inlets
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