Appeal No. 1999-2211 Page 7
Application No. 08/620,427
tubing and ear piece retaining means disclosed in the
specification, as required by 35 U.S.C. § 112, sixth
paragraph.
The specification discloses the ear piece retaining means
to be the vertical ear piece retaining grooves 12 and vertical
ear piece retaining groove keepers 28, which are part of
stethoscope carrier 10 (pages 5-7). In addition, the means
for retaining the tubing are side tubing retainers 22 and
arched tubing shelf/retainer 20, which are disclosed as being
part of stethoscope carrier 10 (page 6). While we are not
reading into the claims limitations that are not found
therein, we find that the neck of the user is not equivalent
to the tubing and ear piece retaining structures found in
appellant's specification, as required by 35 U.S.C. §112,
sixth paragraph. As stated by the court in In re Prater, 415
F.2d 1393, 1406, 162 USPQ 541, 551-52, (CCPA 1969):
It is quite clear that claim 10, in typical
means-plus-function language as expressly permitted
by the third paragraph of 35 U.S.C. § 112, does not3
encompass the human being as the 'means' or any part
thereof. . . [citations omitted]. The pencil,
paper,
3Now sixth paragraph of 35 U.S.C. § 112.
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