Appeal No. 2006-1688
Application 09/901,244
Killion discloses “devices for providing hearing protection
from exposure to sounds that are intense enough to risk hearing
damage or discomfort” (col. 1, lines 6-9).
The appellants argue that “Killion not only fails to disclose
an ear probe tip, or a probe of any sort, but includes the very
structure that the present invention was designed to eliminate,
namely a sound (acoustic) channel” (brief, page 16), and that the
sound channel “eliminates the possibility that a probe end could be
‘proximate’ a second opening” (brief, page 17). The appellants’
argument is directed toward Killion’s fully assembled ear plug.
Killion’s eartip (30) itself (figure 4A), when not assembled with
the other ear plug components shown in figure 5, has an opening at
each end and a passage therebetween which is capable of having a
probe inserted through it such that an end of the probe is proximate
an opening in the eartip. Moreover, the eartip includes a plurality
of annular flanges, the diameter of adjacent flanges decreasing in
size from the first end to the second end (figure 4A).
We therefore find that the appellants’ claimed invention is
anticipated by Killion.
Rejection under 35 U.S.C. § 103
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