Appeal 2006-1414
Application 10/099,381
With respect to argument (a), we have addressed this issue in our prior
discussion of Heller and agreed with the Examiner’s finding that Heller’s
device shines or projects light distally (Answer 5). Thus, we remain
unconvinced by Appellants’ argument (a) for the reasons set forth above.
We have also addressed the issues raised by arguments (b) and (c) in our
previous discussion of Linder. As noted above, the Examiner relies on
Linder as disclosing the concept of providing a chemiluminescent light in a
tube to aid in the intubation of an endotracheal device (Answer 4). Thus,
Appellants’ arguments (b) and (c) are speculative and are not attended by
any persuasive substantiating evidence.
It follows that the above quoted arguments are not convincing of error
in the Examiner’s proposed combination of Heller with Lonky and Linder.
Appellants additionally argue that “Heller desires to have light
emanate to the side of the infant endotracheal tube, . . . [thus,] because of the
service or use involved there, the light must be of a ‘high intensity’” (Br. 6).
Appellants argue that “[i]t would not be obvious to one of ordinary skill in
the art to use what is clearly known to be a low intensity light source -- a
chemiluminescent light source [of either Lonky or Linder]-- as a
replacement for a high intensity light source in Heller” (Br. 8). As we noted
above, the chemiluminescent light of Linder is suitable for transillumination
in a process to aid the intubation of an endotracheal catheter. Thus, a person
with ordinary skill in the art would have been motivated based upon a
reasonable expectation of success to use Linder’s chemiluminescent light in
the endotracheal tube of Heller “to locate and position the tip of . . . [an
endotracheal] tube in a body passage” (Heller col. 1, ll. 52-56). O’Farrell,
853 F.2d at 903-04, 7 USPQ2d at 1680-81 (Fed. Cir. 1988).
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