Appeal No. 2004-0034
Application No. 09/226,467
The examiner relies on the following prior art references
as evidence of unpatentability:
Powers et al. 4,253,452 Mar. 03, 1981
(Powers)
Leonard 4,936,411 Jun. 26, 1990
Claims 1 through 13 and 16 through 23 on appeal stand
rejected under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Powers and Leonard. (Answer, pages 3-4;
final Office action, page 2.)
We affirm. Because we are in complete agreement with the
examiner’s factual findings and legal conclusions, we adopt them
as our own and add the following comments for emphasis.2
As pointed out by the examiner (final Office action, page
2), Powers describes an earplug comprising plug bodies 12 made
from an open cell resilient foam material having “memory” and a
low recovery rate. (Column 1, lines 32-33; column 1, line 57 to
column 2, line 51; Figures 1-5.) According to Powers, “[a]
characteristic of the foam material is that upon distortion by
2 The appellant submits that “[t]he claims herein stand or
fall together with the exception of claims 1, 7, and 13-16.”
(Substitute appeal brief filed Oct. 1, 2001, paper 23, p. 3.)
Thus, pursuant to 37 CFR § 1.192(c)(7)(2003)(effective Apr. 21,
1995), we will consider these claims separately to the extent
that they have been argued separately within the meaning of the
regulation.
3
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