Appeal No. 2000-2022
Application No. 08/888,663
lines 5 to 37).
The examiner argues, first, that the functional
limitation that the adjustment assembly provides positioning
"approximately generally parallel to the ground" is given no
patentable weight, since it does not distinguish structurally
over the prior art (answer, page 8). We do not agree with
this argument, because the function of adjusting the
positioning of the carriage and post driver "approximately
generally parallel to the ground" is part of the function of
the claimed means-plus-function, and as such constitutes a
limitation which defines a structural element of the claimed
combination. See RCA Corp. v. Applied Digital Data Sys.,
Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984)
(reference does not meet claimed means-plus-function element
if it does not disclose structure capable of performing the
function).
The examiner further contends that the Shaver apparatus
would position the carriage and driver "approximately
generally parallel to the ground" in that the tilting movement
of Shaver would move the carriage and driver parallel to the
ground if the ground were uneven or sloped (answer, pages 8 to
7
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