Appeal No. 1997-1409
Application 08/297,399
that the references do not teach the claimed angle. Hill
and Baum show cone angles that are clearly greater than 90E.
It is impossible to derive any cone-angle information from
the hemispherical-shaped elements in Falco without
speculation, because of the difference in shape. Measuring
the angle between chords to the circular sections in the
figure is only one of many possible angles. Appellant
describes that the angle has the advantages of having the
rear end of the cone lie flat against the ear canal and
achieving reverse bend during pullout to minimize creation
of a vacuum. Thus, although these functions have not been
claimed, it cannot be said that the angle is merely a matter
of design choice. Nor is the angle a matter of routine
experimentation to optimize a result effective variable
because none of the references discuss that the cone angle
is a result effective variable for the functions taught by
Appellant.
For these reasons, we conclude that the Examiner has
failed to establish a prima facie case of obviousness with
respect to independent claims 1, 4, and 8. The rejection of
claims 1, 4, and 8 is reversed. The rejection of dependent
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