Appeal No. 1999-2211 Page 4
Application No. 08/620,427
rejections advanced by the examiner, and the evidence of
anticipation relied upon by the examiner as support for the
rejections. We have, likewise, reviewed and taken into
consideration, in reaching our decision, appellant's arguments
set forth in the brief along with the examiner's rationale in
support of the rejections and arguments in rebuttal set forth
in the examiner's answer.
Upon consideration of the record before us, we affirm-in-
part.
We consider first the rejection of claims 7, 8, and 10
under 35 U.S.C. § 102(b) as anticipated by Collins. The
examiner's position (answer, pages 2 and 3) is that "[t]he
person's neck, which is located posteriorly of the means for
holding and transporting, is a means for retaining the ear
pieces and the tubing."
Anticipation is a question of fact. In re King, 801
F.2d 1324, 1326, 231 USPQ 136, 138 (Fed. Cir. 1986). The
inquiry as to whether a reference anticipates a claim must
focus on what subject matter is encompassed by the claim and
what subject matter is described by the reference. As set
forth by our reviewing court in Kalman v. Kimberly-Clark
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