Ex Parte JACKSON - Page 5



          Appeal No. 2000-0004                                       Page 5           
          Application No. 08/872,004                                                  

          bracelet may be secured to the neck of a pet.  However, the                 
          Harrigan bracelet is nonetheless capable of storing a drinking              
          fluid and of being secured to the neck of a pet.  Even the                  
          appellant admits that the Harrigan bracelet may be adapted to fit           
          around the neck of a pet and hold a drinking fluid. (See brief at           
          page 4).  Whether or not the bracelet is used to store drinking             
          fluid and is secured to the neck of a pet is dependent upon the             
          performance or nonperformance of a future act or use.  The                  
          particular manner in which a device is used, however, may not be            
          relied on to distinguish structure from the prior art.  See In re           
          Pearson, 494 F.2d 1399, 1401, 181 USPQ 641, 643 (CCPA 1974); In             
          re Yanush, 477 F.2d 958, 959, 177 USPQ 705, 706 (CCPA 1973) and             
          In re Casey, 370 F.2d 576, 152 USPQ 235, 238 (CCPA 1967).                   
               As the Harrigan bracelet is capable of storing a drinking              
          liquid and of being secured around the neck of a pet, we will               
          sustain this rejection.                                                     
               We turn next to the examiner’s rejection of claims 1 and 4             
          under 35 U.S.C.  102(b) as being anticipated by McBride.  In               
          support of this rejection, the examiner states:                             
                    The sheath formed by surface 11 of McBride is                     
                    considered to constitute a fluid compartment                      
                    into which a fluid (in vessel 19) is                              
                    introduced.  A port (unnumbered) at one end                       
                    of the sheath is closed by a flap 13.                             






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