Appeal No. 1998-2521
Application No. 08/184,212
deformed in the manner shown at 100 in Figure 5 of Crosbie’s drawings. In any case,
claim 1 does not exclude such a deformation.
With further regard to the paragraph bridging pages 21 and 22 of the main brief, it
is significant to observe that appellant does not argue that the claimed attaching means in
claim 1 differs in any way from Crosbie’s attachment ears or wings. Instead, appellant is
content with arguing that his invention as a whole differs from Crosbie’s medical tube
holder without pointing out any differences between Crosbie’s holder that the holder
claimed in claim 1.
With regard to page 23 of the main brief, appellant contends that Crosbie’s
attachment ears are not “adjacent to” or “contiguous with” the locking members.
Contrary to appellant’s allegation in lines 18-22 on page 23 of the main brief, however,
claim 1 was not amended to recite the “precise location” of the attaching means. In fact,
claim 1 does not recite any particular location for the attaching means, let alone reciting
that the attaching means is “adjacent to” or “contiguous with” the clamp means. Merely
reciting that the attaching means is “integral” with the clamp means is not tantamount to
a recitation that the attaching means is adjacent to or contiguo us with the clamp means.
In this regard, it is well established patent law that features not claimed may not be relied
upon to support patentability. See In re Self, 671 F.2d 1344, 1350-1351, 213 USPQ 1, 5
(CCPA 1982) and In re Richards, 187 F.2d 643, 645, 89 USPQ 64, 66 (CCPA 1951).
We also disagree with appellant’s argument on page 24 of the main brief. For the
reasons discussed supra, claim 1 does not distinguish from Crosbie by reciting that the
clamp means is a “strip.” Furthermore, contrary to appellant’s argument, the operation of
Crosbie’s holder is virtually the same as the operation of appellant’s holder from the
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