Appeal No. 1997-4264
Application No. 08/421,131
maintain an edge of a containment flap in an upright, spaced
away position as recited in claim 1 (brief, pages 11-13).
However, we must point out that the recitations that the
containment flap is "for use on an absorbent article," that
the proximal edge is "adapted
to be joined to said absorbent article," and that the distal
edge is "configured to position itself in a spaced relation
away from a bodyside liner of said absorbent article" are
merely statements of intended use. The particular manner in
which a device or article is used, however, cannot be relied
on to distinguish structure from the prior art. See, e.g., In
re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431-32
(Fed. Cir. 1997), In re Spada, 911 F.2d 705, 708, 15 USPQ2d
1655, 1658 (Fed. Cir. 1990), In re Casey, 370 F.2d 576, 580,
152 USPQ 235, 238 (CCPA 1967). Here, the only structure of
the "containment flap" recited in claim 1 is that the
"containment flap" has a length and opposite edges and
comprises an elastomeric thread and a "barrier layer" which is
stitched with the elastomeric thread adjacent one edge.
Appellant's specification explains that as a result of
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