Appeal No. 1999-0414
Application No. 08/625,352
claim 11, claims 5-7, 12, 13 and 25 will stand or fall with claim 11.
The examiner applies Mirmilshteyn against claim 11, pointing out
corresponding elements at pages 7-8 of the answer. The examiner recognizes
that Mirmilshteyn fails to disclose the claimed pad and distance adjuster but relies
on Urella for such a teaching, pointing out that Urella’s headband has a
pad (elements 20, 24) and a distance adjuster (element 40) and that Urella’s
teaching of employing the pad and adjuster in order to provide comfort to the user
would have led the skilled artisan to modify Mirmilshteyn to include such a pad and
adjuster.
The examiner’s rationale appears convincing to us. Thus, in our view, the
examiner has established a prima facie case of obviousness and the burden of
overcoming such a case by objective evidence or convincing argument is now
shifted to appellants.
At page 14 of the principal brief, appellants argue that the primary reference
does not disclose a pad, urging the earphone against an ear by applying force to
the earphone and transferring a portion of the force to the earphone and for
transferring a portion of the force to a temporal region of the user through the pad
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