Appeal No. 94-2716
Application 07/764,775
to be moved to along the guide rods of Figure 3, we conclude as
well that there would be no functional flexibility of the guide
rods to be elastically deformable to dampen shocks. As to this
intermediate position, it is speculative to us that there would
be any elastic deformation of the illustrated guide rods such
as to dampen shocks. Comparing Figures 1 and 3 of Fujita, the
corresponding structure found by the examiner presents a rather
rigid structure and, as such, we find ourselves in agreement
with the observation of appellant at the top of page 6 of the
principal brief on appeal that the overall structure of Fujita=s
Figure 3 would appear to transmit rather than dampen shocks.2
For true anticipation to exist, it is necessary for the
disclosed structure in a reference to perform the recited
functions. The examiner misperceives the functional properties
of the claimed slender members by the repeated reasoning that
anticipation does not reside in the intended manner of use.
Claim 1 does not set forth any intended manner of use or any Afor
2 We also agree with the observations of appellant at page 4 of the
principal brief in the last paragraph, which also recognizes that the Figure
3 embodiment of Fujita illustrates unnumbered guide rods and springs which
appear to cooperate with moveable element 5 in the bottom left portion of
Figure 3. Although this is an unargued position of the examiner, it was
readily apparent to us in our study of this reference. However, again we
agree with appellant=s interpretation of these shown but undiscussed features
in Fujita. Similarly, we have considered but find no merit to the examiner =s
alternative line of reasoning as to the Figure 7 embodiment, which position is
expressed only briefly at the bottom of page 6 of the answer.
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