Appeal No. 2001-0669
Application No. 09/198,637
212, 169 USPQ at 228. Hence, if a prior art device reasonably
appears to inherently possess the capability of functioning in
the manner claimed, anticipation exists regardless of whether
there is a recognition that the prior art device could be used
to perform the claimed function. See, for example, In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431-32 (Fed.
Cir. 1997).
In the present case, while we appreciate that sleeve 10 of
Samuels is intended to be positioned over an arm cast with the
thumb of the user extending through the opening 16, we do not
agree with the examiner’s position to the effect that said
sleeve is inherently capable of functioning in the manner called
for in claim 1, that is, “adapted to be positioned loosely over
a portion of user’s hand covering, wrist and lower sleeve area.”
To begin, Samuels’ disclosure at column 2, lines 52-54, that the
sleeves thereof are sized to snugly fit over the cast with which
they are being used indicates to us that sleeve 10, if used to
cover portions of the lower arm, wrist and hand of a person
wearing a coat having a sleeve and a hand covering having a
thumb, would likely also fit in a snug manner thereover.
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