Appeal No. 2005-1380
Application No. 09/944,314
“imparting a texture” has been described by both Widmer and
Hoerkens. As found by the examiner, the use of “pleats” that
radiate are equivalent to “waveforms” (Answer, page 10; see
Hoerkens, col. 1, ll. 24-25 and 45-48). Finally, the examiner
has set forth a reasonable motivation or suggestion for combining
these references (Answer, page 10), namely to enhance comfort and
security of the hearing aid when worn (see Hoerkens, col. 1, ll.
25-28 and 45-56).3
For the foregoing reasons and those stated in the Answer and
the Office action dated May 18, 2004, we determine that the
examiner has established a prima facie case of obviousness in
view of the reference evidence. Based on the totality of the
record, including due consideration of appellants’ arguments and
evidence, we determine that the preponderance of the evidence
weighs most heavily in favor of obviousness within the meaning of
section 103(a). Accordingly, we affirm the examiner’s rejection
of claims 6 and 13 under section 103(a) over Widmer in view of
Hoerkens.
3We also note that claims 6 and 13 have been included in the
examiner’s rejection under section 102(b) over Hoerkens alone
(Answer, page 4). Since we have affirmed this rejection, and
anticipation is the epitome or ultimate of obviousness, we would
also affirm the rejection based on section 103(a). See In re
Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982).
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