Appeal No. 2005-0878
Application No. 09/911,620
of claim 19 under section 102(b) over Eberl but reverse all other
rejections on appeal for reasons which follow. Accordingly, the
decision of the examiner is affirmed-in-part.
OPINION
A. The Rejection under § 102(b)
The examiner finds that Eberl teaches detachably coupling a
“comfort” pad 3b to a breast prosthesis 1 utilizing hook-and-loop
fasteners 7, where the pad has a “shape generally congruent” to
the first shape of the rear surface (Answer, page 3, citing
Figure 3 of Eberl).
Appellant argues that the examiner has improperly contended
that Eberl teaches detachably coupling a comfort pad 3b to a
breast prosthesis (Brief, page 5). Appellant argues that the
1(...continued)
claim 18 depends from independent claim 10, we consider this
claim with the rejection of claim 10 under section 103(a) as
noted above. In view of our decision infra, there is no harm to
appellant whether we consider claim 18 as allowed since the
examiner inadvertently omitted the claim from any stated
rejection, or if the claim is included in the section 103(a)
rejection and reversed as discussed below. We also note that
claims 16 and 18 lack antecedent basis in claim 10 for a “bust
cup system,” while claim 20 should include the term “and bust cup
system” in the first line. Furthermore, we note that there is no
antecedent basis for the “hook and loop means” recited in line 1
of claim 20. Appellant and the examiner should correct these
formal matters upon return of this application to the
jurisdiction of the examiner.
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