Appeal No. 2003-1945
Application No. 08/240,877
the circumferential edge being associated with the stationary
portion of the flexible flap so as to remain in substantially the
same position during an exhalation, and the free segment of the
circumferential edge being associated with the one free portion
of the flexible flap so as to be movable during an exhalation,
the free segment of the circumferential edge being disposed
beneath the stationary segment when the valve is viewed from the
front in an upright position;
the flexible flap being secured to the valve seat non-
centrally relative to the orifice at the flap retaining surface,
which flap retaining surface and seal surface are nonaligned and
positioned relative to each other to allow for a cross-sectional
curvature of at least the one free portion of the flexible flap
when viewed from the side in a closed position, the nonalignment
and relative positioning of the flap-retaining surface and the
seal surface also allowing for the one free portion of the
flexible flap to be pressed against the seal surface when a
wearer of the mask is neither inhaling nor exhaling and to allow
for the one free portion of the flexible flap to be lifted from
the seal surface during an exhalation.
THE EVIDENCE
The examiner relies on the following items as evidence of
obviousness:2
Shindel 1,701,277 Feb. 05, 1929
McKim 3,191,618 Jun. 29, 1965
Simpson et al., 2,072,516 Oct. 07, 1981
British Patent Document (Simpson)
2 On page 13 in the answer, the examiner mentions U.S.
Patent No. 2,999,498 to Matheson, seemingly for the purpose of
supporting the rejections on appeal. Matheson, however, is not
included in the statement of any rejection. Where a reference is
relied on to support a rejection, whether or not in a minor
capacity, there is no excuse for not positively including the
reference in the statement of the rejection. See In re Hoch, 428
F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
Accordingly, we have not considered the teachings of Matheson in
reviewing the merits of the examiner's rejections.
3
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