Appeal No. 97-0032
Application No. 08/095,295
As is apparent from our patent jurisprudence (e.g., Valmont
Industries Inc. v. Reinke Manufacturing Co. Inc., 983 F.2d 1039,
1042, 25 USPQ2d 1451, 1454 (Fed. Cir. 1993)) and from the Manual
of Patent Examining Procedure (e.g., § 2182), the application of
a prior art reference to a "means plus function" limitation
requires (1) that the prior art element or structure perform the
identical function specified in the claim and (2) perform that
function using structure which is the same as or equivalent to
the structure disclosed in the specification. If the prior art
fails to teach or suggest identity of function to that specified
in the claim and the element or structure of the prior art as
disclosed is not capable of performing such function, then the
inquiry is over and the prior art reference does not meet the
"means plus function" limitation specified in the claim. Since
the snap fasteners (32, 33) of the Warren patent clearly do not
and can not perform the function specified in appellants' claim
33, it is clear that the examiner's rejection of claim 33 can not
be sustained.
Given my determination that the snap fasteners (32, 33) of
Warren do not and can not perform the identical function
specified in claim 33 on appeal, I see no need to reach the issue
2929
Page: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
Last modified: November 3, 2007