Appeal No. 2001-0226
Application 09/009,122
cannot reasonably be described as being within an interior
chamber of the sort required by the claim.
Independent claim 16 recites an insect killing apparatus
comprising, inter alia, a main body and “means for imparting
periodic motion to said main body to simulate a living creature,
whereby said main body moves from a first position to a second
position different from said first position.” The Gagliano
apparatus includes no such means. The examiner’s determination
that “a user picking up and setting the [Gagliano] device down in
another location acts as means for imparting periodic motion”
(final rejection, page 2) is untenable. The limitation at issue
is in means-plus-function format which under 35 U.S.C. § 112,
sixth paragraph, covers the corresponding structure in the
specification and equivalents thereof. There is no authority for
finding that a human being could ever be the equivalent of a
machine disclosed in a patent application. See In re Bernhart,
417 F.2d 1395, 1399, 163 USPQ 611, 615 (CCPA 1969).
In light of the foregoing, the examiner’s determination that
the subject matter recited in claims 1 and 16 is anticipated by
Gagliano is not well founded. Therefore, we shall not sustain
the standing 35 U.S.C. § 102(b) rejection of claims 1 and 16, or
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