Appeal No. 97-1979
Application 08/278,335
element of a claimed invention. RCA Corp. v. Applied Digital
Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed.
Cir. 1984).
Independent claim 14 recites a combination which includes
a “lighter-than-air balloon.” According to the examiner, this
limitation is met by Astle’s inflatable tube 6 in that “since
tube 6 aids in the lifting of the kite, . . . it must be, by
definition, lighter-than-air” (answer, page 3). Although
Astle’s inflatable tube 6 reasonably can be viewed as a
balloon, the mere fact that it aids in lifting the kite does
not necessarily mean that it is lighter-than-air. For
example, the tube 6 might aid in lifting the kite due to its
shape and/or structural relationship with the body of the
kite. Moreover, Astle expressly discloses that the tube 6 is
filled with air. Thus, the examiner’s finding that the tube 6
constitutes a lighter-than-air balloon as recited in claim 14
is not well founded. Furthermore, our review of the Astle
reference indicates that it does not disclose any other
structure which meets the balloon limitations in claim 14.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 102(b) rejection of claim 14, or of claims 15 and 23 which
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