Appeal No. 2005-0980 14
Application No. 09/818,228
airways and nasal passages of the patient” and “overstimulating the mouth salivary
glands...” Indeed, the appellant does not challenge the examiner’s determination that “it
would have been obvious to one of ordinary skill in the art to modify Lethi’s device to
include a humidifier for humidifying the gases delivered to the patient...” Compare the
Answer, page 10, with the Brief, page 12. Thus, we affirm the examiner’s decision
rejecting claims 9, 10, 21, 22, 26 and 27 under Section 103(a).
OTHER ISSUE
We note that the appellant acknowledges that “advancing a catheter through a
patient’s nostril until the distal tip of the catheter is visible through the patient’s mouth
below the patient’s uvula” as required by claim 25 is known to one of ordinary skill in the
art. See the specification, pages 3-4. Thus, upon return of this application, the examiner
is advised to determine whether the combined teachings of Daniell, Lethi and the
appellant’s admittedly known art affect the patentability of the subject matter recited in
claim 25.
CONCLUSION
In view of the reasons set forth in the Answer and above, we affirm the examiner’s
decision rejecting the claims on appeal under Section 103(a) and remand the application
to the examiner to determine the patentability of claim 25 as indicated supra.
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