Appeal No. 98-2031
Application 08/794,154
Concerning claim 62, we note that Nishiyama discloses (col. 4, lines 20-22) that the frame
(20) therein may be made from synthetic or natural rubber, which we consider that one of ordinary skill
in this art would have readily recognized as being flexible and as allowing the frame to conform
generally to the shape of the user’s face. Thus, we will sustain the examiner’s rejection of claims 61
and 62 under 35 U.S.C. § 103.
Claim 63 depends from claim 62 and further sets forth that the frame “consists of a thin sheet of
transparent material.” We find no teaching or suggestion in the references applied by the examiner of a
frame that consists of a thin sheet of transparent material. Even if the tubular portion (12), lens (11) and
collar portion (13) of the goggles of Nishiyama are transparent as the examiner asserts (answer, page
13), this does not establish that the frame of the goggles as defined in claims 1 and 62 on appeal
“consists of a thin sheet of transparent material,” as required in appellants’ claim 63 on appeal.
Accordingly, the examiner’s rejection of claim 63 under 35 U.S.C. § 103 will not be sustained.
To summarize our decision, we note that the examiner's rejection of appealed claim 37 under
35 U.S.C. § 112, second paragraph, has been affirmed. The examiner's rejection of claims 1, 2, 37,
38, 40, 41, 50, 58 through 60, 64 and 65 under 35 U.S.C. § 103 as being unpatentable over Runckel
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