Appeal No. 1998-0412
Application No. 08/320,935
Turning first to the 35 U.S.C. § 102(e) rejection of
claims 1, 5, 6, 8 and 9, appellant argues (brief, pages 16 and
17) that the claims are not anticipated by the teachings of
Miura because the tube 1 in Miura extends to the entrance of
the external acoustic meatus A, but not into the external
acoustic meatus as claimed. Appellant also argues (brief,
page 16) that it is apparent from the figures of Miura that
“the outer diameter of the tube is not less than the diameter
of the external acoustic meatus, whereby the tube 1 could not
be inserted into the external acoustic meatus.” The
examiner’s contentions (answer, page 12) to the contrary
notwithstanding, Miura only states that the tube can be
inserted to the entrance of the external acoustic meatus
(column 18, lines 65 through 68). Inasmuch as the diameter of
the tube prevents it from being inserted into the external
acoustic meatus in Miura, we agree with appellant’s arguments.
Accordingly, the 35 U.S.C. § 102(e) rejection of claims 1, 5,
6, 8 and 9 is reversed.
The 35 U.S.C. § 103 rejections of claims 7, 11, 16 and 18
through 24 are reversed because the additionally cited
references to Bellafiore, Gefvert and Ward neither teach nor
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