Appeal No. 2002-1893
Application No. 09/767,413
OPINION
We have carefully considered the entire record before us,
and we will reverse the obviousness rejections of claims
1 through 11.
With respect to claim 1, appellants and the examiner all
agree that the chest strap disclosed by O’Dwyer is not soft as
claimed (brief, page 5; final rejection, pages 2 and 3).
According to the examiner (final rejection, pages 2 and 3), “such
material of the strap is merely a matter of design choice and
substituting different material for another by one of ordinary
skill in the art is anticipated and would not depart from the
scope and spirit of the invention.”
While the examiner’s proposed modification to O’Dwyer may
not depart from “the scope and spirit of the invention,” it
certainly would depart from the scope and spirit of the stiff
strap teachings of O’Dwyer (Abstract; column 2, line 67 through
column 3, line 4; column 5, lines 4 through 6; column 7, lines
41 through 43; column 8, lines 52 and 53; column 10, lines
15 through 63). We disagree with the examiner’s contention
(answer, pages 3 and 4) that O’Dwyer’s stiff strap forms a
“pliable chest strap of a soft and formable material that is
easily wrapable about the chest of an infant” because O’Dwyer
3
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