Appeal No. 2002-2206 Page 7
Application No. 09/054,211
“the teeth having separations therebetween sized to accommodate a few hairs” without
modification. Moreover, the examiner has not proposed that Guinard’s comb be
modified so as to more closely space the teeth thereon. Thus, in that appellant’s sole
argument against the examiner’s rejection of claim 14 as being unpatentable over
Guinard in view of Morrison is not pertinent to the examiner’s rejection, it follows that we
do not find it persuasive of any error on the part of the examiner. We thus shall sustain
the rejection of claim 14 as being unpatentable over Guinard in view of Morrison.
We shall not, however, sustain the examiner’s rejection of claims 22, 23 and 26
as being unpatentable over Guinard in view of Morrison. Appellant has pointed out on
page 4 of the brief that the examiner has not provided any reference for the use of a
comb with a cleaning device for the diagnosis of infestations of lice and the examiner
has not responded to this argument. The examiner’s statement on pages 5 and 6 of
the answer that “to use the comb of the above combination for removal of lice would
have been obvious ... as it is well known to use fine toothed combs for such purpose as
evidenced by the various references previously recited by applicant and the examiner”
(emphasis added) is of no avail in responding to appellant’s argument, in that it does
not address diagnosing an infestation of pests as called for in claim 22 and claims 23
and 26 depending therefrom. Moreover, the “various references” alluded to by the
examiner have been given no consideration in reviewing this rejection as they were not
positively included in the rejection (see Ex parte Raske, 28 USPQ2d 1304, 1305 (Bd.
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