Appeal No. 2005-2101 3
Application No. 09/922,504
Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Bird.
Rather than attempt to reiterate the examiner's full commentary with regard to the
above-noted rejections and the conflicting viewpoints advanced by the examiner and
appellant regarding the rejections, we make reference to the final rejection (mailed January
12, 2004) and examiner's answer (mailed September 22, 2004) for the reasoning in
support of the rejections, and to appellant’s brief (filed June 14, 2004) and reply brief (filed
November 22, 2004) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
appellant’s specification and claims, to the applied prior art Bird patent, and to the
respective positions articulated by appellant and the examiner. As a consequence of our
review, we have made the determinations which follow.
With respect to the rejection under 35 U.S.C. § 102(b) based on Bird, the examiner
urges that Bird discloses a ventilator comprising an inspiratory unit (Fig. 5); an expiratory
valve (143) shown in Figure 1; and a control unit for controlling the inspiratory unit and
expiratory valve to regulate flow of breathing gas by generating a recruitment phase with
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