Appeal No. 1998-1029
Application 08/361,590
as suggested by Sauer as an obvious alternative in design
and/or to allow an easier movement of the mouth” (answer, page
4). Implicit in the rejection is the examiner’s position that
the modified Exline device, and its method of use, would
correspond to the claimed article (claim 22) and method
(claims 17 and 19-21) in all respects. Once again, we do not
agree. From our perspective, there is no suggestion in either
reference, or need in view of their divergent objectives, for
their combination. Moreover, even if combined in the manner
proposed by the examiner, it is questionable whether the
claimed requirements concerning, for example, the size of the
mouth opening and the degree of deformability of the mouth
would result in the absence of the hindsight knowledge gleaned
from first reading appellants’ disclosure.
We therefore also will not sustain the standing § 103
rejection of the appealed claims as being unpatentable over
the combined teachings of Sauer and Exline.
The § 103 rejection based on Owens
The Owens reference is a design patent directed to the
ornamental design of a face mask, as shown and described. The
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