Appeal No. 2005-1380
Application No. 09/944,314
the prior art used to achieve a smooth or glossy finish
inherently must “give” or “impart” by contact a “texture” as
construed above (see Marks’, page 13-76; specification, page 1,
ll. 4-6).
With regard to the rejections over Walter or Bowser,
appellants argue that neither reference concerns a “hearing
instrument” (Brief, page 5). Appellants’ argument is not
persuasive in view of our claim construction of the term “hearing
instrument” above. Appellants also argue that nowhere in Bowser
is there anything approaching the appellants’ claimed “texture”
(id.). This argument is not persuasive since Bowser clearly
discloses different designs on the cover (or “outer shell”) of
each earphone, which designs are a “texture” within the meaning
discussed above as set forth in appellants’ specification (see
Bowser, Figures 1B, 5A, and 5B; col. 3, ll. 34-54; Office action
dated May 18, 2004, page 2).
With regard to the rejection over Hoerkens, appellants argue
that Hoerkens’ ornamental mesh screen covering is a component
separate from the hearing aid and thus does not constitute
“imparting a texture” (Brief, page 5). This argument is not
persuasive in view of our claim construction given to the word
“imparting” as discussed above. Appellants do not contest that
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