Appeal No. 2007-0999
Application No. 10/600,280
Appellants contend that neither Briggs nor Sigler describe “engaging”
an apparatus as required by claim 1 (See Br. 7 and 14). They argue:
Briggs cannot engage the stethoscope as required by
Applicants’ claims. The term “flexible” by definition requires
yielding. A yielding structure cannot engage a device against
motion. Should the diaphragm 60 of Briggs be of a sufficient
rigidity that it would engage the housing and the medical
apparatus, it would not flexibly seal around the tube 28 of
stethoscope 58, as intended by Briggs, to guard against the
egress of aerosol spray. The provision of the open port 25 with
no engagement structure at its edge would also serve to prevent
engagement with the stethoscope.
(Br. 7.)
Claims 1, 4, 7-11, and 24
After reviewing both references, we find that the “slit” in Sigler’s
sponge for accommodating a pacifier meets the limitation in claim 1 of a
structure for “removably engaging.” When the pacifier is pushed into the
sponge slit, the sponge material fits around it, locking it into place. This
conclusion is consistent with the specification which lists a “slot” as a
suitable structure for engaging a portion of a medical apparatus
(Specification [0025]). A synonym for “slot” is “slit.”4 Because Sigler’s slit
meets the requirement of claim 1 for a “removably engaging” structure, it is
unnecessary to address Appellants’ arguments regarding Briggs’ diaphragm.
Moreover, with respect to claim 1 only in this grouping, we find that all
other limitations of the claim are met by Sigler. Consequently for claim 1,
we affirm the rejection, but designate it as a new ground of rejection under
4 Slot: “narrow, elongated depression, groove, notch, slit, or aperture. Id. at
1239
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