Appeal No. 1999-1483 Page 6
Application No. 08/732,887
Further consideration of Young, Adamski, Kupfert and Busko, which individually
were added in the rejections against the remaining dependent claims, does not provide
teachings which will cure the defect in the combination of Burrows and High. The four
rejections that encompass dependent claims 7, 8, 11 and 13 are not sustained.
Another shortcoming in the examiner’s rejection of claim 1 that is worthy of mention
is that claim 1 sets forth the means for pivoting the step assembly and the leg assemblies
in means-plus-function format, which must be evaluated in the context of the sixth
paragraph of 35 U.S.C. § 112. In order to meet a means-plus-function limitation, the prior
art must perform the identical function recited in the means limitation, and perform that
function using the structure disclosed in the appellant’s specification or an equivalent
structure. See Valmont Indus. Inc. v. Reinke Mfg. Co., 983 F.2d 1039, 1042, 25 USPQ2d
1451, 1454 (Fed. Cir 1993). As to the first requirement, even if one were to consider that
the Burrows system accomplishes the same function as the claimed system, it does not do
it using the same structure disclosed in the appellant’s specification. In this regard, the
appellant’s means for pivoting the three assemblies comprises three pairs of spaced
flanges (22) which are fixedly mounted to the underside of the top step (16) in such a
fashion that the pivotally mounted assemblies mounted thereon will be displaced along
axes that are oriented 120 degrees to one another. However, in the Burrows ladder, each
of the leg assemblies is mounted on flanges attached to the sides of the legs (12) of the
ladder assembly through pivotally attached intermediate links (29), and the flanges are
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