Appeal 2007-1951
Application 10/392,140
1 ANALYSIS
2 We begin with independent claim 10. As we noted, supra, in an
3 anticipation rejection it is only necessary that the claim reads on something
4 disclosed in the reference. In Wenning, structure identical to claim 10 is
5 found in the reference with the exception that in Wenning, the structure is
6 vertically oriented. The claim does not recite an orientation of the sink.
7 Claim 10 recites an upstanding wall that extends peripherally to the floor,
8 and that a peripheral metal frame extends upwardly from the wall of the
9 body. As broadly recited, the frame extends upwardly from the body. In the
10 orientation of Wenning, the frame 17 extends upwardly from the peripheral
11 wall 12 of shell bottom 16 since the frame 17 extends in a direction away
12 from the upstanding peripheral wall 12 of shell bottom 16. In addition, how
13 the shell of Wenning is oriented is an intended use of Wenning's device.
14 The shell bottom 16 and frame 12 is capable of being oriented in a vertical
15 fashion, though Wenning does not disclose doing so. Certainly, most
16 persons of ordinary skill in the art have tipped storage containers on their
17 back temporarily to take advantage of gravity in loading heavy or bulky
18 contents, in which case, the back becomes the floor, and supports the heavy
19 and bulky contents, at least temporarily. This illustration merely serves to
20 demonstrate the inherent nature of Wenning’s device. As we stated in our
21 Decision (p. 4) "anticipation exists whether or not there was a recognition
22 that it could be used to perform the claimed function." Thus, the shell
23 bottom 16 is the floor of the housing 10 irrespective of the orientation of the
24 housing. In sum, because the intended use of Wenning's structure does not
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