Appeal 2007-0801
Application 10/654,357
Appealed claim 81 stands rejected under 35 U.S.C. § 112, 2nd ¶.
Claims 58-80 stand rejected under 35 U.S.C. § 102(b) as being anticipated
by Negano.
We consider first the Examiner’s rejection of claims 58-80 under
§ 102 over Negano. As stated at page 1 of Appellants’ Reply Brief, the
“determinative issue” on appeal is whether the releasing surface of Negano’s
control lever has the presently claimed “distal projection,” “bump,” or is
“shaped to interfere with the movement of the rider’s fingers along the
respective surfaces in the lengthwise direction.” The Examiner cites
Figure 16 of Negano for depicting “the top surface, as indicated by 2, as
being raised (or bumped out)” (Answer 6). However, we concur with
Appellants that one of ordinary skill in the art would not reasonably find a
fair description of a projection or bump on surface 2 of Negano’s control
lever which interferes with movement of the rider’s finger along the surface.
In our view, the ever so slight departure from a straight line does not
constitute a fair description of the claimed projection or bump within the
meaning of § 102. It is noteworthy that Negano does not disclose any
projection or bump on surface 2, and it is well settled that a patent’s
drawings should not be considered as being to scale. Accordingly, we
cannot sustain the Examiner’s § 102 rejection.
We will sustain the Examiner’s § 112, 2nd ¶ rejection of claim 81
which simply recites “[a] control lever as shown in Figures 12 and 13.” The
Examiner properly cites MPEP § 2173.05(s) and Ex parte Fressola,
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