Appeal No. 97-3981
Application 08/506,423
relationship. The only structural relationship between the massaging apparatus, bed and
floor disclosed by Persaud is depicted in Figures 1 through 4 wherein the massaging
apparatus is clamped to a bed frame rail. These figures clearly show that the massaging
apparatus, as so clamped, is not totally confined within the space between the bed and the
floor. The examiner’s contention that Persaud’s massaging apparatus is capable of being
“unclamped from the frame of the bed, collapsed down and placed under the bed” (final
rejection, page 2) is of no moment since claim 1 requires in positive terms that the
massaging apparatus be totally confined within the space between the bed and floor, and
not just that it be capable of such confinement.
Thus, Persaud does not disclose each and every element of the invention recited in
claim 1. Accordingly, we shall not sustain the standing 35 U.S.C. § 102(b) rejection of this
claim, or of claims 2 through 5 which depend therefrom, as being anticipated by Persaud.
As for the standing 35 U.S.C. § 103(a) rejections on appeal, Schumacher, the
examiner’s primary reference, discloses a back massaging apparatus which is adapted to
be mounted on a wall beside and above a bed. The apparatus includes, inter alia, a base
in the form of the bottom of housing 40, a mounting arm in the form of frame 12, a cross
the preamble of this claim does not appear to have any particular relevance to the
anticipation issues presented in this appeal.
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