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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