Appeal 2007-2404
Application 10/445,666
(“‘Comprising’ is a term of art used in claim language which means that the
named elements are essential, but other elements may be added and still
form a construct within the scope of the claim.”).
We also note that Reitz’s Figure 4 shows the cap/mask combination
being worn with the cap unattached to the mask. However, both Figures 2
and 3 of Reitz show the cap and mask being worn with a strap connecting
the two portions of the device. Reitz also discloses that “[t]he mask body 22
can . . . be secured to the cap 14 by extending the end portions 44 of the
fastener straps 36 through at least one ventilation hole 16. However, the use
of at least two ventilation holes 16 is preferred” (Reitz, col. 5, ll. 36-39).
Given Reitz’s disclosure of the desirability of securing the mask to the cap,
we agree with the Examiner that one of ordinary skill would have considered
it obvious to use alternative attachment methods, such as stitching, to secure
the two items together.
Appellant argues that, although Reitz discloses that the mask may be
made of rubber, Reitz prefers the mask to be made of rigid or semi-rigid
material (id. at 4). Appellant urges that one of ordinary skill would select
rigid materials for Reitz’s mask because it would keep the two separate
panels that extend over the wearer’s face from flapping (id.). Appellant also
argues further that Reitz’s mask/cap combination fails to meet claim 1’s
limitation requiring the mask to extend from chin to forehead (id. at 4-5).
We are not persuaded by these arguments. It is well settled that, “in a
section 103 inquiry, ‘the fact that a specific [embodiment] is taught to be
preferred is not controlling, since all disclosures of the prior art, including
unpreferred embodiments, must be considered.’” Merck & Co. v. Biocraft
5
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