Ex Parte Christopher - Page 8




              Appeal No. 2005-0980                                                                      8               
              Application No. 09/818,228                                                                                


              approximately 4 to 40 liters per minute”.  See the Brief, page 9, together with claim 1.                  
              However, as indicated supra, the appellant has not disputed the examiner’s finding that the               
              hospital room oxygen supply in Lathi “is inherently capable of delivering oxygen with a flow              
              rate of 4-40 L/min.”  Thus, we again determine that the claimed gas source embraces the                   
              hospital room oxygen supply described in Lathi.  The appellant simply has not                             
              demonstrated that the functional limitation relating to the flow rate would have rendered the             
              claimed gas source structurally different from that described in Lathi.  Schreiber, 128 F.3d              
              at 1477, 44 USPQ2d at 1432; Casey, 370 F.2d at 580, 152 USPQ at 238.                                      
                     Thus, we determine that the preponderance of evidence weighs most heavily in                       
              favor of obviousness of the subject matter of claims 1, 2, 6, 8, 11 through 15, 20, 23 and                
              28 within the meaning of Section 103(a).  Accordingly, we affirm the examiner’s decision                  
              rejecting claims 1, 2, 6, 8, 11 through 15, 20, 23 and 28 under Section 103.                              
                                    REJECTION BASED ON LETHI AND BOWDEN                                                 
                     As evidence of obviousness of the subject matter defined by claims 3 and 16 under                  
              35 U.S.C. § 103, the examiner relies on the combined disclosures of Lethi and Bowden.                     
              See the Answer, page 8.  The disclosure of Lethi is discussed above.  As acknowledged                     
              by the examiner (Answer, page 8), Lethi does not disclose that its nasal catheter has “a                  
              plurality of markings indicating a series of common lengths...” as required by claim 3 on                 
              appeal.                                                                                                   









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