Appeal No. 2001-0669
Application No. 09/198,637
requirement that the central portion of the sleeve is “adapted
to be positioned loosely” over a user’s hand covering, wrist and
lower sleeve area is a statement of intended use that does not
structurally distinguish over the sleeve of Samuels. The
examiner also appears to be of the view that the central portion
of Samuels’ sleeve 10 is, in fact, capable of being positioned
loosely over a hand covering worn by a user, within the broad
meaning of the claim language “positioned loosely.”
It is by now well settled that there is nothing
intrinsically wrong in defining something by what it does rather
than by what it is. In re Swinehart, 439 F.2d 210, 212, 169
USPQ 226, 228 (CCPA 1971). With respect to the “adapted to be
positioned loosely” language found in claim 1, while such
language does not require the claimed wrist cover to be loosely
positioned over a user’s hand covering, wrist and lower sleeve
area, this language does impart structural limitations to the
claimed wrist cover in the sense that, to satisfy this language,
a device must be capable of performing the recited function or
use. See, for example, In re Ludtke, 441 F.2d 660, 663-64, 169
USPQ 563, 565-67 (CCPA 1971) and In re Swinehart, 439 F.2d at
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