Appeal No. 2002-0032 Page 5
Application No. 08/514,507
which are pivotally movable between fully closed and fully opened positions (see
column 4 and Figure 2). While it is not explicitly stated, in our view one of ordinary skill
in the art would have appreciated from the appellant’s specification that wing members
34 and 36 are intended to be and must be non-flexible in order to operate in the
manner intended. Thus, from our perspective, there is no question that non-flexible as
used in claim 10 means just that.
In the Cullen system, the flexible properties commonly associated with cables
are necessary in order for the apparatus to perform in the manner intended, which is to
provide variable resistance to the movement of the bagging machine away from the
bagged material by alteration of the length and shape of loops of cable (see column 4
and Figures 1 and 2). Therefore, we cannot agree, on the basis of common definition
or the teachings provided by Cullen, that the cables disclosed in the reference meet the
claim limitation of “non-flexible.” In this regard, we point out that the examiner’s
statement that cables must have inherent rigid properties in order not to break or snap
under load is unsupported by evidence.
Since Cullen fails to disclose or teach one of the elements recited in claim 10, it
is not anticipatory thereof and we will not sustain the rejection.
SUMMARY
The rejection is not sustained.
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