Appeal No. 2001-0261
Application 08/546,050
Vermorel and Gorlke or Jensen
Appellant argues that Vermorel fails to teach a cushion
which is attached to the extended portion 12, but teaches having
the uncushioned extended portion fit so snugly in the auditory
canal 13 that it would be impossible to put a cushion as
disclosed and claimed and that nothing in the secondary
references suggests the desirability of combining what is there
disclosed to meet the limitations of the claims (Br24). It is
argued that the rejection is based on hindsight (RBr6).
The examiner states that providing a cushion for an earphone
was very well known in the art and since Gorlke and Jensen teach
a cushion over an earpiece inserted into the ear canal, it would
have been obvious to provide such a cushion in Vermorel (EA13).
Vermorel discloses a hollow plug 12 of compressible
semi-rigid material which is introduced into the external
auditory canal 13 of the user (translation, p. 8). The hollow
plug 12 is attached to a cover 19 having an internal cavity
filled with a sound absorbing material 20 (translation, p. 9).
The cover 19 and hollow plug 12 together form a shell body where
the hollow plug 12 is an extended portion. The hollow plug 12
corresponds to the claimed "extended portion shaped and sized to
fit into the concha of the user's ear" because the external
auditory canal 13 is considered to roughly correspond to the
concha. Vermorel has a microphone 16 and speaker 15 positioned
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