Appeal No. 98-0516
Application No. 08/400,328
this feature of the invention is to allow the operator of the
vehicle to select the path that the container will travel
based upon such factors as the maximum permissible height to
which the container can be raised and the shape and size of
the container. The examiner admits that Edelhoff does not
explicitly disclose a plurality of preselectable paths of
travel of the container, but takes the position that
this is merely a statement of intended use for [sic]
which the control means of Edelhoff clearly has the
capability of performing, particularly since no
limitations regarding what the paths of travel
consist of have been set forth (Final Rejection,
page 4).
We do not agree. It is clear to us that the recitation
setting forth the control means is not a statement of intended
use, but is structure recited in means-plus-function form and
constitutes a limitation that must be disclosed or taught by
Edelhoff in order for the reference to be anticipatory. Since
it is not, the reference fails to anticipate the subject
matter of claim 29 and this rejection cannot be sustained.
The Rejections Under 35 U.S.C. § 103
The test for obviousness is what the combined teachings
of the prior art would have suggested to one of ordinary skill
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