Appeal No. 98-3293
Application 08/650,417
this is because appellants’ claim 1 on appeal does not define over the open, tubular spacer of
McSherry by defining a bottom wall (e.g., 33) for the spacer and a cable support surface (35) thereof,
as seen in Figures 1 and 2 of the application, that extends continuously from one end wall (26) of the
spacer body to the opposite end wall of the spacer body, thereby providing a cable support surface
which is clearly capable of supporting a cable continuously along the entire length of the spacer body.
While we understand that such an arrangement is structurally what appellants have disclosed in their
specification, we must agree with the examiner that the language employed in claim 1 on appeal is
subject to a much broader interpretation and is not limited to an arrangement like that disclosed in the
specification and shown in the drawings of appellants’ application.2
For the above reasons, we will sustain the examiner’s rejection of claim 1 on appeal under 35
U.S.C. § 102(b) based on McSherry.
2With regard to a spacer which is apparently similar to that seen in McSherry, but which has a
closed bottom wall for contacting a supported cable member, we direct the examiner’s attention to the
prior art mentioned on page 2, lines 13-19, and page 7, lines 21-23, of appellants’ specification. In
addition, in the event of any further prosecution, the examiner should also consider the applicability of
the spacer seen in Murphy (e.g., Figs. 9 and 10) to the claimed subject matter. Further, the examiner
should evaluate the scope to be afforded the "or the like" language found in lines 1 and 9 of appellants'
claim 1 and similar recitations in claim 10. For purposes of this appeal, we understand this language in
line 1 of claim 1 to encompass "wire, conduit, or other similar transmission means", as has been set
forth on page 3 of appellants' specification. As for the recitation in line 9 of claim 1, we understand
such language to additionally cover a "strap" as set forth on page 8 of the specification.
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Last modified: November 3, 2007