Appeal 2007-0548
Application 10/815,408
to be possible, the infant’s legs would require direct support by the recess.
Further, as Appellants argue, any other reading of the claim would in effect
write the language “support an infant’s . . . legs” out of the claim.
With respect to the “intended use” argument, we also agree with
Appellants’ position. Appellants chose to limit the scope of their claimed
“recess” by requiring it to have a configuration capable of supporting both
an infant’s torso and legs. Thus, their claimed “recess” must be interpreted
in a way so as to be capable of supporting an infant’s torso and legs. See In
re Stencel, 828 F.2d 751, 755, 4 USPQ2d 1071, 1073 (Fed. Cir. 1987); In re
Deminski, 796 F.2d 436, 442, 230 USPQ 313, 315 (Fed. Cir. 1986)).
The § 102(b) Rejection
Given our interpretation of claim 1, we turn to its rejection based on
Bowman. Bowman discloses “a medical patient restraint device for
additional comfort while restraining patients during surgical procedures such
as circumcision of infants.” (Bowman, col. 1, ll. 49-52.) Bowman discloses
support members for the head and torso but is silent with respect to support
for the legs.
In addition to the Examiner’s arguments based on a claim
interpretation different than ours (see supra), the Examiner relies upon
Figures 1 and 2 to show Bowman’s recess directly supports the infant’s legs.
Figures 1 and 2 are reproduced in the Appendix (p. 8). The Examiner argues
“the infant’s lower leg portion actually contacts the block 50 to prevent the
infant from extending his/her legs downwardly during the medical
procedure.” (Answer 6 (with no supporting citation).) Further, according to
the Examiner, Figure 1 “shows . . . the infant’s legs are supported by the
recess formed in the torso pad 40 when the infant is lying in the infant
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