Appeal No. 1999-1317
Application No. 08/632,216
fully met by the reference. Kalman v. Kimberly Clark Corp.,
713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert.
denied, 465 U.S. 1026 (1984).
In reading claim 1 on the Fayolle device, the examiner
(see pages 3 and 4 in the answer) has determined that the
claim limitations pertaining to the “separator,” “buffer” and
“buffer suspension assembly” are met by Fayolle’s anvil 31,
vacuum drum/flange 9, 10 and jack 18, respectively. As
correctly pointed out by the appellant, however, the Fayolle
device is not disclosed for use with linerless labels.
Although claim 1 does not include the web of linerless labels
as part of the placer mechanism recited therein, it does
define the “separator” element in terms of its capability to
separate individual labels from a web of linerless labels.
There is nothing intrinsically wrong with defining something
by what it does rather than by what it is. In re Swinehart,
439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Fayolle’s
“separator,” anvil 30, functions through its sharp edge to
separate individual labels from a support liner. It is not
apparent, nor has the examiner cogently explained, how this
structure might be capable under principles of inherency of
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