Appeal No. 2003-1144
Application 09/212,343
In light of the foregoing, it is clear to us that the
examiner’s assertions on page 6 of the answer that the device of
Helt is inherently capable of performing the function described
in the functional limitation of claim 9, and that “the garment of
Helt on a five foot user would envelope [sic] the chest and back
of the user, whereas the garment of Helt on a six foot nine user
would envelope [sic] the trunk of a that [sic] user,” are
entirely without foundation and contrary to the clear teachings
of the Helt patent. Accordingly, we will not sustain the
examiner’s rejection of claims 9 through 11 and 13 under
35 U.S.C. § 102(b) as being anticipated by Helt.
Given our above-noted determination regarding the
shortcomings of Helt, and the lack of any further teaching or
suggestion in Marchello supplying such deficiencies, it follows
that the examiner’s rejection of dependent claim 14 under
35 U.S.C. § 103(a) based on Helt and Marchello also will not be
sustained.
Since we have refused to sustain either of the rejections
posited by the examiner, the decision of the examiner rejecting
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