Appeal No. 1999-0739
Application 08/747,663
Like appellant (brief, pages 4-8), we find the
examiner’s rejection of independent claims 1 and 12 on appeal
based on Curtis to be improper. In the first place, it is the
applicant, not the examiner, who determines what the invention
is and what features or characteristics of the invention are
important or critical for carrying out the invention. In the
present case, appellant has both disclosed and claimed that
his device for cleaning the tongue includes a plurality of
rigid fingers that gently part the tops of the taste buds
while simultaneously introducing liquid between the taste buds
onto the floor of the tongue. Thus, whether or not the
examiner considers the limitation of “rigid fingers” to be
critical to carrying out the objectives of appellant’s
invention, or nor, is irrelevant,
since appellant discloses and expressly sets forth in the
claims on appeal that the tongue cleaning device includes
“rigid fingers” and provides his reasons why such fingers
should be rigid. As a second point, even if the hollow,
flexible bristles of Curtis might be capable of functioning to
part the taste buds of a user’s tongue in the manner claimed
8
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