Appeal No. 2001-0150
Application No. 09/250,617
the manner or method in which a machine is to be utilized is not
germane to the issue of patentability of the machine itself. In
re Casey, 370 F.2d 576, 580, 152 USPQ 235, 238 (CCPA 1967). A
statement of intended use does not qualify or distinguish the
structural apparatus claimed over the reference. In re Sinex,
309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). There is an
extensive body of precedent on the question of whether a
statement in a claim of purpose or intended use constitutes a
limitation for purposes of patentability. See generally Kropa v.
Robie, 187 F.2d 150, 155-59, 88 USPQ 478, 483-87 (CCPA 1951) and
the authority cited therein, and cases compiled in 2 Chisum,
Patents § 8.06[1][d] (1991). Such statements often, although not
necessarily, appear in the claim's preamble. In re Stencel, 828
F.2d 751, 754, 4 USPQ2d 1071, 1073 (Fed. Cir. 1987). Therefore,
the manner in which the rack disclosed by appellants is used is
not germane to the issue of patentability. The Deaver rack is
capable of storing shoes.
Appellants also argue that Deaver requires the use of ropes
over pulleys to achieve suspension of its rack. However, as
claim 4 is set out in comprising format, the presence of ropes
over pulleys is not excluded.
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