Appeal 2007-1096
Application 10/872,181
“to attract or repulse a part of the oral cavity to keep a person from snoring
and prevent sleep apnea.” (Br. 8.) “The operative element of the present
invention is to keep the soft palate or uvula from fluttering by pressing a
stiffening member against the fluttering uvula.” (Id.)
We recognize that Nelson’s system utilizes magnets to move and
stabilize the uvula and soft palate for treating sleep-related breathing
disorders, such as snoring and sleep apnea. However, at the same time, the
primary magnet employed in Nelson’s system meets all the limitations of the
apparatus of claim 1. We have interpreted the “stiffening member” to be
capable of covering part of the uvula and being compressed against the
uvula. (See supra at p. 3.) Figs. 4A, 8, 10a, and 11 of Nelson show a
primary magnet that covers part of the uvula and which would be
compressed against it when attached by the stud (42) [“at least one piercing
post”] to the backing plate (46). Thus, claim 1 is satisfied by Nelson. The
“comprising” language of the instant claim opens it to other elements
allowing the presence of the secondary magnet described by Nelson.
Appellants also argue that Nelson does not “discuss, imply or suggest
any predetermined amount of pressing force to press the appliance against
the uvula as specifically claimed in the present invention. . . . Nelson . . .
merely uses the piercing [post] to hold the magnetic appliance in place,
nothing more.” (Br. 8.)
We do not agree. Claim 1 requires that the backing is “for providing a
predetermined pressing force of said stiffening member to the uvula and soft
palate.” As we have interpreted this phrase, the “pressing force” must be
sufficient to compress the stiffening member against the uvula or soft palate
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