Appeal No. 2006-1688
Application 09/901,244
lines 3-5; figure 1), and lack of disclosure that the shape of one
flange can differ from that of another flange. Because claim 63 has
two plausible, conflicting interpretations, the claim is indefinite.
Claim 70 depends from claim 60 and requires that “the second
end extends past the probe end a distance, the distance the second
end extends past the probe being sufficient to prevent the probe end
from contacting a patient’s ear upon insertion of the probe into the
patient’s ear canal and insufficient to form a portion of the
acoustic path from the probe end into the patient’s ear canal.”
The examiner argues that “[c]laim 70 is indefinite because it
is unclear whether Applicant is attempting to claim the combination
of an ear probe tip and a probe or merely the subcombination of an
ear probe tip” (office action mailed July 28, 2004, page 4). In the
examiner’s view, “claim 70 uses claim language that indicates that
the probe is positively disposed within the tip.” See id.
The appellants argue that “[t]he reference to the ear probe is
made only to structurally define the ear probe tip” (brief,
page 18).
Because the limitation in claim 70 requiring that the second
end extends past the probe end does not refer to the “when the probe
is received within the passage” limitation in claim 60, and is not
similarly qualified, it is unclear whether that claim 70 limitation
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