Appeal No. 2002-2340
Application 08/886,666
effect this functionality as well. Among the elements recited at
the end of claim 136 on appeal comprising the Markush Group of
the instrument, Wunsch is clearly a tongue depressor-like
instrument according to its basic teachings.
The separately stated rejection of claim 101 is also
sustained within 35 U.S.C. § 103 utilizing the collective
teachings and showings of Wunsch and Mori alone, even in addition
to the examiner's separate reliance upon In re Dailey. Claim 101
requires that the light emitter means include a tip in the shape
of a hook. At the outset, it appears to us that Wunsch alone
appears to teach a light conductive spatula 10 generally in the
shape of a hook-like element. Because the description of Figure
1 of this reference indicates that the light conductive spatula
10 is formed of polystyrene, it appears to be deformable at the
desire of the user for any particular purpose. Additionally,
Figure 7 of Mori indicates that his transparent light conductive
tubes or sheaths 10 as a whole may be deformed in the manner were
the tip ends of these respective elements 10 are shown to exist
and be shaped in a form of a hook. Note the description of
Figure 7 at column 3, lines 36-44 and 48-53, both of which
indicate that the tubes may be shaped into various shapes or
desired configurations.
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