Appeal No. 98-1032
Application 08/620,658
substantially similar in structure to that which is called for
in the independent claims, in particular claims 6 and 10 which
do not call for the “piggy bank” configuration for the hollow
body portion. As to the mode of operation language of the
independent claims, the issue is not whether one of ordinary
skill in the art would have operated Monnet’s Figures 3-4
device in the manner set forth in the functional language of
the independent claims, as appellants would apparently have us
believe, but rather whether the reference device is capable of
such operation. See In re Swinehart, 439 F.2d 210, 212-13,
169 USPQ 226, 228-29 (CCPA 1971). See also Ex parte Cordova,
10 USPQ2d 1949, 1950-51 (Bd. Pat. App. & Int. 1987). Since we
have found that Monnet’s Figures 3-4 device is capable of
operating in the manner called for in the claims, the
functional language of the independent claims on appeal does
not in this instance serve to patentably distinguish over
Monnet. With respect to the “piggy bank” configuration
limitation of claim 1, it is our view that it would have been
obvious to one of ordinary skill in the art to configure the
hollow body portion of Monnet’s dispenser in the shape of a
-6-
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