Appeal No. 1998-2798
Application No. 08/645,144
teaching of Adair of the desirability of including an
additional opening near the distal end of an endotracheal
tube, it would have been obvious to one of ordinary skill in
the art to provide such an opening near the distal end of tube
10 of Carden.
In making this rejection we have reviewed the declaration
under 37 CFR § 1.132 of Dr. Benumof (filed January 31, 1997),
but do not consider it to be pertinent because it relates to
the question of the obviousness of combining Adair and Vilasi,
and does not refer to the tapered tube disclosed by Carden.
Conclusion
The examiner’s decision to reject claims 2 to 4 and 6 to
11 is reversed. Claims 2, 4 and 10 are rejected pursuant to
37 CFR § 1.196(b).
This decision contains a new ground of rejection pursuant
to 37 CFR § 1.196(b) (amended effective Dec. 1, 1997, by final
rule notice, 62 Fed. Reg. 53,131, 53,197 (Oct. 10, 1997), 1203
Off. Gaz. Pat. & Trademark Office 63,122 (Oct. 21, 1997)). 37
CFR § 1.196(b) provides, "[a] new ground of rejection shall
not be considered final for purposes of judicial review."
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