Appeal No. 97-2418 Page 10
Application No. 08/390,843
USPQ2d 1429, 1431-32 (Fed. Cir. 1997). See also LaBounty Mfg.
v. Int'l Trade Comm'n, 958 F.2d 1066, 1075, 22 USPQ2d 1025,
1032 (Fed. Cir. 1992) (in quoting with approval from Dwight &
Lloyd Sintering Co. v. Greenawalt, 27 F.2d 823, 828 (2d Cir.
1928)):
The use for which the [anticipatory] apparatus was
intended is irrelevant, if it could be employed without
change for the purposes of the patent; the statute
authorizes the patenting of machines, not of their uses.
So far as we can see, the disclosed apparatus could be
used for "sintering" without any change whatever, except
to reverse the fans, a matter of operation.
Here, the question of whether Bachmann's diverter is or might
be used to distribute two phase mixed steam flow, merely
depends upon the performance or non-performance of a future
act of use, rather than upon a structural distinction in the
claims. Stated differently, the diverter of Bachmann would
not undergo a metamorphosis to a new diverter simply because
it was used to distribute two phase mixed steam flow instead
of gas. See In re Pearson, 494 F.2d 1399, 1403, 181 USPQ 641,
644 (CCPA 1974) and Ex parte Masham, 2 USPQ2d 1647, 1648 (Bd.
Pat. App. & Int. 1987).
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