Appeal No. 98-1256
Application No. 08/599,934
member or straight edge 24a or 24b of Loggins actually is or might be used in such a manner merely
depends upon the performance or non-performance of a future act of use, rather than a structural
distinction in the claims. Stated differently, the elongated member or straight edge 24a or 24b of
Loggins would not undergo a metamorphosis to a new device simply because it was used to guide a
cutter for flooring materials. 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).
With respect to claim 14 the appellant argues that there is no specific disclosure in Loggins
which would indicate that the length of the elongated member is "sufficient" to allow a user to place a
knee thereon while simultaneously grasping the handle. While it may be true that there is no specific
disclosure in Loggins of the size of the elongated member 24a or 24b, artisans must be presumed to
know something about the art apart from what the references disclose. See In re Jacoby, 309 F.2d
513, 516, 135 USPQ 317, 319 (CCPA 1962). This being the case, the artisan would understand that
drafting instruments (such as those of Loggins) conventionally come in various sizes, and that most of
these conventional sizes are sufficiently large to perform the function in question (e.g., if the straight edge
of Loggins were 12 inches in length, it would be sufficiently large for a user to place a knee on a portion
thereof while at the same time grasping the handle). The artisan would have found it obvious as a
matter of common sense (see In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA
1969)) to make the elongated member 24a or 24b of Loggins of such conventional sizes.
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