Appeal No. 2006-1688
Application 09/901,244
probe is not part of the claimed invention (brief, page 14). Baum’s
ear insert (11) has first and second ends, each with an opening, and
a passage (20) between the openings that is capable of having
inserted through it a probe that has a length covered by the ear
insert and has an end that is proximate to the second opening of the
ear insert (figure 1). Baum’s ear insert also has a plurality of
annular flanges, the diameter of adjacent flanges decreasing in size
from the first end to the second end (figure 1).
The appellants argue that Baum’s sound outlet knob (13) can
extend only a short distance into the ear insert and, therefore,
cannot be proximate the second end of the ear insert (brief,
page 14). The portion of Baum’s device that corresponds to the
appellants’ ear probe tip is the ear insert (11). The ear insert
has a passage which, when the sound outlet knob is not inserted into
the ear insert, can have a probe inserted through it.
For the above reasons we find that the appellants’ claimed
invention is anticipated by Baum.
Rejection under 35 U.S.C. § 102(b) over Ochi
Ochi discloses “an earplug capable of attenuating sound waves
of multiple frequency bands” (col. 1, lines 7-8).
The appellants argue that “Ouchi [sic] does not disclose a body
portion substantially the same length as a probe of any sort, let
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