Appeal No. 2004-0363
Application 09/176,866
of “drawing contaminates from the cavity through said connection
tube . . .” See the Brief, pages 14-16. However, we determine
that the connector tube and vacuum line described in Holt are
capable of performing the claimed functional capabilities since
the claimed and Holt’s connection tube and vacuum line struc-
tures appear to be identical or substantially identical. See
Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; Best, 562 F.2d
at 1255, 195 USPQ at 433-34. On this record, the appellant has
not demonstrated that the claimed functional limitations would
have rendered the structures of the claimed connection tube and
vacuum line patentably different from those described in Holt.
The dispositive question is, therefore, whether the applied
prior art references would have suggested employing an applicator
having the claimed cavity as the applicator of the massaging
device of the type described in Holt. On this record, we answer
this question in the affirmative.
As found by the examiner (Answer, page 5), Holt teaches
employing an applicator other than those specifically illustrated
in the drawings. See also, page 2, lines 36-38. In other words,
Holt teaches employing any applicator inclusive of the one
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