Appeal No. 97-0032
Application No. 08/095,295
SCHAFER, Vice Chief Administrative Patent Judge, concurring-in-
part.
I join in Judge Nase’s opinion reversing the rejections of
claims 21 through 32 and 34 through 36 under 35 U.S.C. § 103.
I.
Claim 33 includes the following limitation (Brief, p. 40):
[P]ivot means pivotably attaching said inner wall of said
bellows compartment to said strap, said pivot means enabling
said bellows compartment to pivot with respect to said strap
about an axis generally normal to said front surface of said
strap and said inner wall of said bellows, said pivot means
enabling said bellows compartment to be pivoted to a
horizontal position independent of any orientation of said
strap on said torso of said person.
This limitation is written using the word "means" followed by a
statement of function, thus raising the issue of whether the
provisions of 35 U.S.C. § 112, ¶ 6, have been invoked.
I recognize that the § 112, ¶ 6, issue has not been
expressly raised by applicant or the examiner. However, the
language of the statute, in using the word "shall" is mandatory
in its application. The sixth paragraph states that a means-
plus-function claim "shall be construed to cover the
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