Interference No. 104,192
Cragg v. Martin v. Fogarty
Court in Stalego, 263 F.2d at 338, 120 USPQ at 477, referred
to one feature as not having criticality and another as adding
nothing of consequence. The key is that the limitations of
the applicant’s claim at issue must be examined and are
relevant too for materiality, not just the features of the
patent claim. In Wetmore v. Miller, 477 F.2d 960, 177 USPQ
699, 701 (CCPA 1973), the Court of Customs and Patent Appeals
cited to Rieser v. Williams, 255 F.2d 419, 118 USPQ 96 (1958)
and Stalego v. Heymes, 263 F.2d 334, 120 USPQ 473 (1959), as
setting forth the criterion that has been adopted by the CCPA
for determining the applicability of section 135(b).
We do not regard Wetmore v. Miller as making any change
to the criterion set forth in Stalego v. Heymes. Evidently,
neither does Fogarty. In Wetmore, in light of the additional
“fusible” limitation contained in the applicant’s claim, the
Court stated that the Board made too much emphasis on the fact
that the patent claim applies to multiple embodiments and gave
insufficient weight to embodiments in the patent using a heat
fusible member. Note that the patent claim utilized means-
plus-function features under 35 U.S.C. § 112, sixth paragraph.
Clearly, the Court considered the technical significance of
features in the applicant’s claim in a comparison with the
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