Appeal 2007-1096
Application 10/872,181
DISCUSSION
Anticipation by Nelson
Claims 1, 3, 14, and 15 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Nelson (Answer 3). The Examiner states that Nelson
describes an apparatus for treating snoring that meets the requirements of
claim 1. According to the Examiner, Nelson’s apparatus comprises
a stiffening member (36) configured to be affixed to a
predetermined portion of the uvula and soft palate, a piercing
post (44)[ ]2 for affixing and adjoining said stiffening member,
and a backing (46) for the piercing post for keeping said
stiffening member in place and providing a predetermined
pressing force of said stiffening member to the uvula and the
soft palate.
(Answer 3.)
A claim is anticipated if all of the elements and limitations of the
claim are described in a single prior art reference. We agree with the
Examiner that Nelson’s apparatus describes all the requirements of claim 1,
anticipating the claimed invention. As pointed out by the Examiner,
Nelson’s primary magnet comprises all three elements of claim 1, including
a primary magnet (36) which acts as a “stiffening member,” a stud (42)
which corresponds to a “piercing post,” and a backing (46). (See supra at
pp. 4-5; Nelson at col. 8, ll. 29-38; Figs. 4A, 10a, 8, and 11.)
Appellants argue that the “basic functionality” of Nelson is
“significantly different” from the invention because Nelson utilizes magnets
2 Piercing post (44) of Nelson is actually the pierced hole through which a
“stud” (42) is placed (Nelson at col. 8, ll. 29-36).
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