Appeal No. 97-3981
Application 08/506,423
rejection and answer (Paper Nos. 5 and 8) for the respective positions of the appellant and
the examiner with regard to the merits of these rejections.
Turning first to the standing 35 U.S.C. § 102(b) rejection of claims 1 through 5,
Persaud discloses a back massaging device which is described in the following terms:
a representative embodiment of the concepts of the present invention is
illustrated in the drawings and makes use of a back massaging device which
includes a base having a clamp for securement to a bed frame rail. A
vertical column is mounted for reciprocal axial and rotational movement on
the base. A transverse arm is pivotally mounted at an upper end of the
vertical column and includes an actuating rod mounted for reciprocal parallel
linear movement therewith. A massaging implement is pivotally secured on
a distal end of the actuating rod. A programmable control simultaneously
controls movement of the vertical column, the transverse arm and the
actuating rod to move the massaging implement over a preprogrammed
contour of an individual’s back. The programmable control may include a
remotely operable joystick to allow control of the back massaging device by
a reclining individual during a back massaging operation [column 2, lines 14
through 31].
Anticipation is established only when a single prior art reference discloses,
expressly or under principles of inherency, each and every 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 1 recites the combination of a bed located on a floor,
a space between the bed and floor and a massaging apparatus totally confined within the
2
space. As pointed out by the appellant, Persaud does not teach this particular structural
2 The fact that claim 1 is written in Jepson format (see MPEP § 2129) with the noted
relationship between the bed, floor and massaging apparatus being recited in
3
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