Appeal No. 97-0503
Application 08/218,102
side as recited, instead of on opposite sides as in the prior
art, would have been mere design choice.
Reliance on “obvious design choice” is precluded where
the claimed structure and the function it performs are different
from the prior art. In re Chu, 66 F.3d 292, 298-99, 36 USPQ2d
1089, 1094-95 (Fed. Cir. 1995).
In the present case, the claimed structure and the
function it performs are different from the prior art. Clearly,
the structure is different; the transducers are in different
locations. We find that the function is different as well. For
example, appellant’s specification indicates that a sharper
resonance pattern is obtained if the transducers are placed in
the vicinity of one another. Specification at 5, lines 29-34.
We recognize that the specification says that
transducers may be located on opposing walls as well for some
applications. We do not consider this an admission that the
function is the same. It may be that some applications do not
require the sharp resonance pattern that can be obtained if the
transducers are placed in the vicinity of one another. The
claims on appeal, however, are limited to placing the transducers
in the vicinity of one another on the same side of a container.
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Last modified: November 3, 2007