Appeal No. 97-1810 Page 14
Application No. 08/321,262
the contour of the palm, they are capable of being gripped in
the manner recited in claim 23. That is, a thumb is capable
of fitting within the curve and a middle finger of a hand is
capable of fitting under the curved distal end, opposite the
thumb, when the handle is manually grasped and oriented for
brushing. In this regard, it should be remembered that claim
23 is directed to a tooth cleaning apparatus, per se, not to a
method of using wherein this particular tooth cleaning
apparatus is used. It seems the appellant is endeavoring to
predicate patentability upon the method of using the tooth
cleaning apparatus. This method is not determinative of the
patentability of claim 23. The manner or method in which a
machine is to be utilized is not germane to the issue of
patentability of the machine itself. See In re Casey, 370
F.2d 576, 580, 152 USPQ 235, 238 (CCPA 1967); In re Yanush,
477 F.2d, 958, 959, 177 USPQ 705, 706 (CCPA 1973).
For the reasons set forth above, the decision of the
examiner to reject claim 23 under 35 U.S.C. § 103 is affirmed.
Claims 26 and 28 through 30
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