Appeal No. 2003-1945
Application No. 08/240,877
The appellants’ uncontroverted affidavit/declaration evidence
(particularly Castiglione I, Bowers, Betts and Fabin) establishes
that this problem does not occur in respiratory mask exhalation
valves of the sort disclosed by Simpson. The appellants’
evidence further establishes that the McKim reed valve is not
suitable for use in a respiratory mask exhalation valve. Hence,
even if McKim is assumed to be analogous art with respect to the
subject matter claimed (the appellants argue and present evidence
that it is not), the evidentiary showing proffered by the
appellants belies any notion that it would have been obvious
within the meaning of § 103(a) to combine Simpson and McKim so as
to arrive at the subject matter recited in claims 78 and 81 for
any reason, let alone the one advanced by the examiner. The
examiner’s additional citation of Shindel against dependent claim
37 does not overcome this deficiency in the basic Simpson and
McKim combination. Thus, considered in its entirety, the
evidence before us does not justify the examiner’s conclusion
that the differences between subject matter recited in
independent claims 78 and 81, and dependent claims 34 through 38,
40 through 74, 79 and 80, and the prior art are such that the
subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art.
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007