Appeal No. 97-3064
Application 08/235,332
tracks or gates 17, 18 that define a curved guide path through
which film 16 (i.e., a flexible resilient strip) is advanced
by a driving mechanism 34. Comparing Fig. 1 of Wittle and
Fig. 2 of the appellant’s device, it is readily apparent that
Wittle’s curved guide path is remarkably similar to the
appellant’s curved guide path. The tracks or gates 17, 18 of
Wittle are stated to be spaced apart by a distance of two film
thicknesses (page 1, line 35; page 2, lines 58 and 59) and,
thus, the guide path defined by these tracks or gates clearly
has the capability
of guiding a longitudinally advancing strip which has a
“nominally curved lateral cross section.” In view of the
remarkable similarity of the guide path of Wittle to that of
the appellant, there is a reasonable basis to conclude that if
the device of Wittle was used to guide and advance a strip
having a “nominally curved lateral cross section,” Whittle’s
device would inherently function to cause the strip to “snap”
in the claimed manner. Whether Wittle’s device actually is5
5Where, as here, there is a sound basis to believe that
the critical function for establishing novelty in the claimed
subject matter may, in fact, be an inherent characteristic of
the prior art device, it is incumbent upon an appellant to
6
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Last modified: November 3, 2007