Appeal No. 96-3923
Application 08/309,790
substantively similar to those obtained by inhalation of
tobacco smoke. Fuller provides a nebulizer (see the last full
paragraph on page 1080) which contains capsaicin (see, e.g.,
the penultimate paragraph on page 1080) and is "adapted" to be
introduced into a user's mouth for inhalation. While the
examiner has additionally relied on the teachings of either
Rose or Ray for the particular type of inhalation device, the
nebulizer of Fuller satisfies the limitations of the
inhalation device as broadly set forth in representative claim
8 and, accordingly, we see no need to resort to the teachings
of either Rose or Ray insofar as the limitations of
representative claim 8 are concerned.
The appellants argue that there is no suggestion in
Fuller to use the inhalation device or nebulizer for the
purpose of having smokers inhale capsaicin so as to reduce
their incidence of smoking tobacco. This is true. We must
point out, however, the particular manner in which a device or
article is used cannot be relied on to distinguish structure
from the prior art. See, e.g., In re Schreiber, 128 F.3d
1473, 1477, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997), In re
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