Appeal No. 2005-0980 5
Application No. 09/818,228
USPQ 607, 611-12 (CCPA 1975)(the admitted prior art in an applicant’s specification may
be used in determining the patentability of a claimed invention); in accord In re Davis, 305
F.2d 501, 503, 134 USPQ 256, 258 (CCPA 1962).
REJECTION BASED ON LETHI
As evidence of obviousness of the subject matter defined by claims 1, 2, 6, 8, 11
through 15, 20, 23 and 28 under Section 103, the examiner relies on the disclosure of
Lethi. See the Answer, pages 4-8. The examiner finds (Answer, page 4), and the
appellant does not dispute (Brief, pages 8-10), that Lethi teaches
a nasopharyngeal catheter for open delivery of a continuous air/oxygen into a
patient’s distal nasopharynx or oropharynx to supplement a patient’s
spontaneous respiration... comprising a nasal catheter 1 having a proximal
end and a distal end adapted to extend through a patient’s nose and into the
patient’s distal nasopharynx or oropharynx...; a delivery tube 9 adapted to
extend below the patient’s nostril connected to the proximal end of the nasal
catheter; and a gas source.
The examiner finds (Answer, page 12), and the appellant does not dispute (Brief, pages 8-
10), that
Lethi teaches one source of gas to be a hospital room oxygen supply system
(See Col. 4, lines 53-59 of Lethi). A hospital room oxygen supply system is
inherently capable of delivering oxygen with a flow rate of 4-40 L/min.
The appellant argues that the nasal catheter described in Lethi cannot be used
“without restricting the patient’s spontaneous respiration through the patient’s nasopharynx
or oropharynx” as required by claim 1 on appeal. See the Brief, pages 8-9. In support of
this argument, the appellant refers to an inflatable cuff 3 of Lethi’s nasal catheter, which is
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