Appeal No. 1999-0455
Application 08/635,483
well known and sized sound conducting tubes including 42 gram
wall tubing. Alternatively, the examiner finds that there is
no evidence that 40-44 gram wall tubing was not the result of
routine experimentation or that 40-44 gram wall tubing is
critical to the invention. With respect to the declarations
filed under 37 CFR § 1.132, the examiner finds that these
declarations do not provide evidence of unexpected results
[answer, pages 6-9].
We agree with the position argued by appellants.
First, appellants are correct that there is no specific
disclosure of 40-44 gram wall tubing in either Smithline,
Kebel, Tynan ’989 or Tynan ’827. The most that these
references disclose is that the stethoscopes disclosed therein
use conventional rubber tubing. There is no indication of
what is conventional rubber tubing for a stethoscope. The
Thorne Declaration states that most single tube stethoscopes
use industry standard “Y” shaped PVC tubing of approximately
30-32 grams of weight [paragraph 4]. This evidence is not
contested by the examiner. The Wells Declaration details what
appellants argue is the extensive experimentation performed to
find that 40-44 gram wall tubing provided the best results.
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