Appeal No. 2001-0261
Application 08/546,050
in the hollow plug 12 (i.e., the extended portion) as recited in
claim 17. The difference between Vermorel and the subject matter
of claims 1 and 17 is that the hollow plug 12 in Vermorel does
not have a cushion and, because it conforms to the shape of the
external auditory canal 13 to adhere hermetically (translation,
p. 8), it is not of a size that allows attachment of a cushion.
The rejection does not account for, or provide motivation
for, the modification that the hollow plug 12 in Vermorel would
have to be made smaller to accommodate a cushion. The cushion in
Gorlke is designed to fit over a support element 2 and the
cushion in Jensen is designed to fit over a projection 5 to
cushion the ear. The examiner has not explained how such
cushions would be modified to be used on the hollow plug 12 in
Vermorel since the plug will not fit into the ear canal with a
cushion over it. The cushion 16 in the Sapiejewski patents is
attached over an extended portion and the size of the extended
portion and the cushion are sized "to provide comfort and seal"
(Sapiejewski '387, col. 2, lines 65-66) inside the ear concha.
However, the examiner has not argued that it would have been
obvious to use a cushion over the extended portion in Vermorel in
view of the Sapiejewski patents or to make the extended portion
with its cushion in the Sapiejewski patents curved along
substantially its entire length in view of Vermorel. We conclude
that the examiner has failed to establish a prima facie case of
- 8 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007