Appeal No. 2003-1439
Application No. 09/896,112
I. The Rejection of Claims 1, 7, 12-14, and 16-18 under
35 U.S.C. § 102(e) as being unpatentable over Thomas
The examiner has found that Thomas discloses an ice pack 10
with a main panel 34 with side sections 33 and 35, straps for
securing the ice pack, a plurality of ice pockets 24, and an ice
pack formed of fabric material. (Final Rejection, page 2,
paragraph number 3).
The appellant asserts that she has invented an ice pack which
is particularly configured for a horse. (Appeal Brief, page 3,
lines 23-24).
The examiner replies that the recitation “for a horse”
recites only the manner in which the apparatus is to be employed
and does not differentiate the claimed apparatus from a prior art
apparatus satisfying the claimed structural limitations.
(Examiner’s Answer, page 3, lines 8-11).
While this general statement of law is true, we read the
claim differently than the examiner. The claimed apparatus must
be “sized to fit over a horse’s back and sides,” have “a strap
secured to the main panel that secures the main panel to a horse,”
and have “a plurality of ice pockets attached to each of the side
sections of the main panel” (claim 1). These are not statements
of intended use, rather, they are structural limitations. We
cannot find these limitations in the cited prior art.
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