Appeal No. 2000-2147
Application No. 08/835,709
comprising: a housing, substantially equal in length to a
distance between said location on said floor and said support of
said structure, comprising a conduit and a sloping side, said
conduit . . . , and said sloping side, having a length
substantially equal to a length of said raceway, provides a
gradual transition between said floor and said raceway . . . ;
and a fastener . . . . ” Inasmuch as the future tense language
in the claims may never occur, it is not used to differentiate
the claimed invention over the teachings of the applied
reference(s). The same holds true for the language in the claims
directed to the manner in which the claimed raceway is to be
used. In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA
1962) (statement of intended use in an apparatus claim failed to
distinguish over the prior art apparatus); Ex parte Masham,
2 USPQ2d 1647, 1648 (Bd. Pat. App. & Int. 1987) (“a recitation
with respect to the manner in which a claimed apparatus is
intended to be employed does not differentiate the claimed
apparatus from a prior art apparatus”).
According to the examiner (answer, page 5), Batty discloses
a raceway that comprises housing 11 and fastener 19, and that the
fastener and the housing cooperate “to integrate a floor cover
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