Appeal No. 98-2123
Application No. 08/326,669
jacket 10 in conjunction with the sleeve 14 can be considered
to comprise the card. As the examiner has noted, Gee's sleeve
14 has an elongate functional member 22 stowed therein in such
a manner so as to be capable of repeated withdrawal from and
receipt into the sleeve.
With respect to representative claim 3, the appellants
argue that Gee does not include a test strip. However, as we
noted above in Rejection (1), the recitation "being adapted to
permit" repeated receipt and withdrawal of a test strip does
not require that a test strip actually be received into and
withdrawn from the card but, instead, merely sets forth a
function which the card must be structurally capable of
performing (see, e.g., In re Venezia, supra). The sleeve 14
of Gee clearly has the capability of receiving a test strip
and whether a test strip actually is or might be inserted into
the sleeve of Gee depends upon the performance or non-
performance of a future act of use rather than a structural
limitation in representative claim 13. As we have also noted
above in Rejection (1), it is well settled that if a prior art
device inherently possesses the capability of functioning in
the manner claimed, anticipation exists regardless of whether
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