Appeal No. 98-0606
Application 08/553,603
contends that the word “toothbrush” in the preambles of the
appealed claims is a statement of intended use only, and that
any brush having the structure set forth in the body of claims
anticipates the claimed subject matter. We do not agree.
Whether a preamble or introductory clause constitutes a
limitation on a claim is a matter to be determined by the
facts
of each case in view of the claimed invention as a whole. In
re Stencel, 828 F.2d 751, 754, 4 USPQ2d 1071, 1073 (Fed. Cir.
1987); Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 480-81
(CCPA 1951). We agree with appellants’ argument (brief, page
6, lines 10-12) that the word “toothbrush” as used in the
present application would be understood by one of ordinary
skill in the art to imply a particular type of personal
hygiene product for use in a person’s mouth (specification,
page 6, lines 25-33). Further, appellants’ specification
makes it clear that the invention is directed to an
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